MAINS MODULE

INDIAN POLITY
MERGED FDF

Atish Mathur
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10+ years of teaching experience
 INDIAN POLITY
(Legal History)

Government of India Act, 1935..................................................................................................................... 2

Context:......................................................................................................................................................2
Broad Structure Proposed by the Government of India Act, 1935:............................................................ 2
Centre:....................................................................................................................................................... 2
Provincial:.................................................................................................................................................. 3
Important Structural Provisions:................................................................................................................. 3
Issues:........................................................................................................................................................3
Concluding Remarks:................................................................................................................................ 5

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Government of India Act, 1935

Context:
● Passed by the British Parliament in 1935 and came into effect in 1937.
● Based on a report submitted by a committee led by Lord Linlithgow. The committee was
appointed by both houses of the British Parliament: both houses.
● The Indian National Congress (INC) had placed strong objections to the 1919 Act and were
demanding full responsible government based on the principle of self-determination.
● The British understood that they could contain mass movements like the Non-cooperation
movement and Civil Disobedience movement with the use of force.
● The motive was to divide nationalist opinion and co-opt them into the administrative structure.
● The Act of 1935 itself was greatly influenced by:
○ Simon Commission Report
○ Nehru Report
○ White paper published a er 3 round tables (1930-1932)
○ Electoral reforms mentioned by Lothian Commission

Broad Structure Proposed by the Government of India Act, 1935:

● All India Federation = British Indian Provinces + Princely States
○ This never came into existence as the Princely States did not agree to the unreasonable
conditions which were essential for the All India Federation to come into existence. As a
result, even the central legislatures envisioned in the Act did not come to fruition.
○ The provisions of the 1919 Act with minor changes were continued at the central level.
However, the proposals had a tremendous impact on the structures we adopted while
framing our own constitution.
Centre:
● Dyarchy + Bicameral legislatures
○ Council of States (Provinces - direct elections, Princely - nomination states).
○ Federal Assembly (Provinces - indirect elections, Princely - nomination states).
○ It was not implemented -> 1919 Act structure continued.

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Provincial:
● Autonomy was introduced.
● Full responsible government in place of dyarchy.
● Reserved subjects and executive council removed.
● Governor (appointed by the Crown).
● Governor would work on the advice of the Council of Ministers (CoM).
● CoM was chosen from elected members of the provincial legislatures and were collectively
responsible to them.
● All members of provincial assemblies were directly elected.
● Bicameral legislatures in six provinces (Bengal, Assam, Madras, UP, Bihar, Bombay).

Important Structural Provisions:

● Separate electorates for Muslims, Sikhs, now extended to Anglo Indians and Christians as well.
● Reservation for women and ‘depressed classes’.
● Council of Secretary of State abolished.
● Provincial elections in 1937.
● Franchise was extended.
● Federal Court and RBI established.
● Two new provinces - Sindh and Orissa - were created.
● Distribution of powers:
○ Federal List (Reserved Subjects + Transferred subjects)
○ Provincial List
○ Concurrent List

Issues:
● Only the British Parliament could amend the Act of 1935.
● Religion-based separate electorates.
● Only people with property could vote.
● Similar to today's emergency powers, the Governor could take control of the provinces.
● Arbitrary discretionary powers to the Governor.
● 40% of the provincial budgets was non-votable and therefore under the Governor. This comprised
financial autonomy.
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● 80% of the central budget was non-votable and therefore under the Governor-General.
● Important subjects at the Centre retained under the reserved list under Governor General
(defence, foreign affairs).
● Absolute veto powers to the Governor General.
● Objections from multiple stakeholders:
○ Muslim leaders felt the All India Federation would be unitary and favoured Hindu
domination. (In the 1937 provincial elections, INC performed excellently and Muslim
League very poorly even in the separate electorates).
○ Congress objected to the 1/3 seats proposed at the Centre level for the princely states.
○ The princely states did not want to surrender their autonomy to such an extent.

Impact Analysis of GoI Act, 1935

Federal Features Limitations Similarities and Differences with the

Current Constitution

Federation proposed Did not operationalise India has a quasi federal system. Though
with British provinces due to required number of the Federation is nowhere used in the
and princely states. princely states did not constitution. “Union of states” &
Option given to join accede “Indestructible states”

Provincial autonomy Governor given power to States are autonomous in their own
introduced and dismiss council of sphere BUT Article 356 in case of
abolition of dyarchy ministers and take control breakdown of constitutional machinery
of administration and provision to make it unitary in times
of emergency (Article 352)

Division of subjects in 3 Governor enjoyed veto Schedule 7 lists; central, state and
lists for legislative power and prior consent concurrent.
division of powers was needed for few
subjects. States vote on their own budget but
40% of budget was non depend in centre for devolution of funds.
votable, lacked financial

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autonomy.

Council of states at the 104 out of 260 Rajya sabha representing the states but
centre represented princely has different number of seats from
states and therefore not different states.
representing provinces Less powers in matters of money bill etc.
with elect in ed
legislatures.
Unlike the present Rajya
sabha

Federal court was Not the final court of Supreme Court established for federal
established to appeal. It was the privy disputes and for constitutional
adjudicate interstate council in England. interpretation.
disputes and interpret
the constitution

Concluding Remarks:
● The most significant milestone in the development of India's legal and political history.
● A significant chunk of our Constitution, especially the administrative provisions, are borrowed
from the Act.
● "The Act was a means of continuation of British control of India and deflection of the challenges
to the Raj posed by Gandhi, Nehru, and the nationalist movement" - Andrew Muldoon.

Nationalist Freedom Struggle Documents for Contextual Historical Value Additions for Essay, GS, and
Ethics

Source Author Features Special Remarks

The Constitution The author of ● Right to free speech, S.P. Sathe’s chapter –
of India Bill 1895, the document ● right to property, ‘Fundamental Rights and
also referred to as remains a ● inviolation of one’s Directive Principles’ in
Swaraj Bill mystery; Annie home, Constitutional

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Besant seems ● equality before the Developments since

to suggest that law etc. Independence considers
the document ● touched upon the document as the first
was influenced structures of non-official attempt at
by Bal government and dra ing a Constitution for
Gangadhar separation of powers. India.
Tilak – who Rohit De’s chapter –
was the force ‘Constitutional
behind calls Antecedents’ in The Oxford
for ‘Swaraj’. Handbook of The Indian
Constitution views the
document as the first
articulation of a
constitutional imagination
by Indians.
The Constitution of India
Bill 1895 went on to
influence other
antecedents to the
Constitution of India, 1950
like the Commonwealth of
India Bill 1925 and the
Nehru Report 1928.

The Revolutionary Ram Prasad ● Establish (through In the Kakori Conspiracy

Bismil - leader ‘organised and Case, which eventually led
of Hindustan armed revolution’) a to the hanging of Bhagat
Socialist ‘Federal Republic of Singh and his associates,
Republican the United States of The Revolutionary was part
Association India’, of the evidence used in the
(HSRA) ● universal adult trial

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suffrage,
● nationalisation of
major industries,
● right to recall elected
representatives and
group rights

Commonwealth of ‘National ● Right to elementary The Bill was presented in

India Bill 1925 Convention’ in education, the British Parliament by
April 1924 - ● freedom of Mr George Lansbury, a
Sapru expression, leading member of the
Chairman ● gender equality, Labour Party, in December
● non-discrimination 1925. However, it did not
etc. go beyond the first reading
● Most of these rights, stage as the Labour Party
however, were had been defeated in the
subject to elections.
restrictions. As Niraja Jayal in
● limits on franchise by Citizenship and its
prescribing Discontents points out, it
qualifications that had a huge influence on
included income, the Nehru Report 1928 –
land ownership, several provisions that
literacy and were repeated verbatim.
education.

Nehru Report 1928 Motilal Nehru ● Dominion status for The Hindustan Times, in an
India, editorial, argued that the
● the right to free report marked ‘…the final
expression and death of communal egotism
opinion, and the birth of a national
● equality before the consciousness in the

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law, country…we have drawn

● right to bear arms, the Magna Carta of our
● freedom of liberty’.
conscience, Granville Austin in India’s
● free profession and Constitution: Cornerstone of
propagation of a Nation, highlights that
religion. the fundamental rights
● right to free and section of the Report was ‘a
elementary close precursor of the
education. Fundamental Rights of the
● introduced a Constitution [of India,
parliamentary 1950]…10 of the 19
system of subclauses re-appear,
government along materially unchanged, and
with universal adult three of the Nehru rights are
suffrage. included in the Directive
Principles’.
Niraja Jayal in Citizenship
and Its Discontents
suggests that the Report, in
the context of the
international discourse of
rights around the late
1920s, was a ‘rather
exceptional document in its
early envisioning of social
and economic rights’.

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Karachi Resolution Indian ● first time put forward The socio-economic

National a list of provision in the Karachi
Congress socio-economic Resolution went on to
principles/rights that influence the Constituent
the Indian state had Assembly in drawing up
to adhere to. These Part IV of the Indian
included: Constitution – the Directive
● protections for Principles of State Policy.
industrial workers,
● abolishing of child
labour,
● free primary
education and
protections for
agricultural labour.
● The Resolution also,
which seems to be a
Gandhian influence,
prohibited
intoxicating drinks
and drugs.

Constitution of M.N Roy ● Embraced radical While M.N. Roy’s ambitions

Free India: A Dra decentralisation and for the Dra failed, it
1944 direct democracy. remains a novel document
● State/collective that offers a fascinating
ownership of alternative vision for India
economic resources and must be regarded as an
● provision for free, important strand of India’s
compulsory and intellectual history that can
secular education for inform how India navigates

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children up to the its constitutional and

age of 14. political future today.

The Dra of Indian All-India ● Adopt universal adult Further, the Charter had
Woman’s Charter Women’s franchise, found its way into the then
of Rights and Conference, ● institute equal pay newly constituted United
Duties 1946 for equal work, Nations. Between 1946 and
● strike down 1948, the UN was in the
discriminatory process of dra ing the
marriage and Universal Declaration of
inheritance rights. Human Rights. As Miloon
● It also placed a duty Kothari notes, the Indian
on the State to delegation comprising of
ensure the financial Hansa Mehta, Rajkumari
security and health of Amrit Kaur and Lakshmi
Indian women. Menon played a key role in
shaping the final text of the
Declaration. They had
submitted the Charter to
the UN submission in 1946
for reference, even before
an Indian Constituent
Assembly was set up.

Gandhian Shriman ● decentralised During the

Constitution of Narayan political and constitution-making
Free India 1946 Agarwal, a administrative setup process, there were
Gandhian with village members of the Assembly
economist, panchayats as the who pushed for Gandhian
dra ed it core units. ideas to be incorporated
based on ● Fundamental duties into the Constitution of
Gandhi’s ideas were conjoined with India – especially the

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fundamental rights; system of Panchayati Raj.

● Document explicitly These proposals, however,
states that rights are were opposed by other
contingent on the members notably B.R.
performance of Ambedkar. Ultimately, the
duties. Constituent Assembly
● Ironically, the rejected the idea of
Gandhian Panchayati Raj based
Constitution administration as it would
contained a provision lead to reworking the form
for a ‘right to bear and structure of the Dra
arms’. Constitution. Nonetheless,
a provision (Article 40) for
Panchayati Raj was placed
in the non-justiciable
Directive principles of State
Policy along with other
Gandhian inspired
provisions on alcohol
prohibition (Article 47) and
cottage industries (Article
43).

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(Preamble, FR, DPSP, FD)

Preamble, FR, DPSP, FD................................................................................................................................ 2

The Fundamentals..................................................................................................................................... 2
PYQ Analysis............................................................................................................................................. 2
Preamble..............................................................................................................................................2
FR........................................................................................................................................................ 2
Special Questions................................................................................................................................ 4
DPSP................................................................................................................................................... 5
Basic Structure.....................................................................................................................................5
Amenability of FRs, Relationship between FRs and DPSP, Property Rights.............................................7
What is Basic Structure? (Intro)................................................................................................................. 8
What is the rationale behind the doctrine of Basic Structure?................................................................... 8
What is the relationship between basic structure and constitutionalism?.................................................. 8
What is the relationship between basic structure and Rule Of Law?......................................................... 9
How did the doctrine of Basic Structure evolve?....................................................................................... 9
What is the extent to which the Parliament can amend the Constitution?............................................... 10
What was held in the Kesavananda Bharti Case?................................................................................... 11
What has been included in the Doctrine of Basic Structure?................................................................... 11
What has been excluded in the Doctrine of Basic Structure?.................................................................. 13
What is the impact of the judgement and the doctrine of Basic Structure?............................................. 14
What is the critical analysis of having such a doctrine?........................................................................... 17
Can Basic Structure Doctrine be amended or dilluted?........................................................................... 17
What about other countries?.................................................................................................................... 18
What was held in the Minerva Mills Case? Why is the case important?.................................................. 19
What is the relationship between FRs and DPSPs?................................................................................ 20
What is the nature and state of Property Rights in India?....................................................................... 22
Why is the SC deciding on Private Property and what can happen?...................................................... 23

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Preamble, FR, DPSP, FD

The Fundamentals

Syllabus + PYQs (2013-2023) + Current Affairs = Topic Relevancy

Explicitly mentioned Dimensions Frequency Trigger Event Themes

Implicitly mentioned Floating Topics
Stand Alone Context
Integrated

PYQ Analysis
Preamble

WHEN? WHAT? WHY?

2016 Discuss each adjective attached to the word 40 years - 42nd C.A. 1976
‘Republic’ in the ‘Preamble’. Are they defendable in
the present circumstances?

● Possible Ques
● Utility & Impact of the Preamble?

FR

WHEN? WHAT? WHY?

2013 Discuss Section 66A of IT Act, with reference to its In-news, cartoonist
alleged violation of Article 19 of the Constitution. arrests, Judgement
pending

2014 What do understand by the concept “freedom of Election year,

speech and expression”? Does it cover hate speech Muzaffarnagar Riots, 100
also? Why do the films in India stand on a slightly years of Indian Cinema,
different plane from other forms of expression? PK movie release
Discuss.

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2015 Does the right to clean environment entail legal No outright ban but
regulation on burning crackers during Diwali? restrictions on noise
Discus in the light of Article 21 of Indian levels, timings, env
Constitution and judgements of the apex in this standards etc.
regard.

2017 Examine the scope of Fundamental Rights in the Puttuswamy Judgement

light of the latest judgement of the Supreme Court
on Right to Privacy.

2019 What can France learn from the Indian Constitution’s Hijab-Mother-School
approach to secularism? Trip Issue, Notre Dame
cathedral etc.

2021 Analyze the distinguishing features of the notion of Black Lives Matter
Equality in the Constitutions of USA and India

2022 “Right of movement and residence throughout the COVID 19 Lockdown,

territory of India are freely available to the Indian CAA Protests, Farm Law
citizens, but these rights are not absolute. “ Protests, Assam
Comment. Mizoram Border
Dispute,

2022 “The most significant achievement of modern law in 25/35 years* of

India is the constitutionalization of environmental landmark env cases - MC
problems by the Supreme Court.” Discuss this Mehta, Vellore, Rural
statement with the help of relevant case laws. Kendra etc.

2023 The Constitution of India is a living instrument with 45 years of Maneka

capabilities of enormous dynamism. It is a constitution Gandhi case
made for a progressive society”. Illustrate with special

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reference to the expanding horizons of the right to life

and personal liberty

2023 Explain the constitutional perspectives of Gender Triple Talaq Case

Justice with the help of relevant Constitutional (Shayara Bano) - 5
Provisions and case laws. years, UCC in news

2021 ‘Constitutional Morality’ is rooted in the Constitution CAA-NRC, 370,

itself and is founded on its essential facets. Explain the Sabrimala, Lt. Gov v.
doctrine of ‘Constitutional Morality’ with the help of Delhi
relevant judicial decisions.

Special Questions

WHEN? WHAT? WHY?

2018 Whether National Commission for Scheduled Castes AMU, JMIU denying SC
(NCSC) can enforce the implementation of constitutional reservation
reservation for the Scheduled Castes in the religious
minority institutions? Examine.

2021 ‘Constitutional Morality’ is rooted in the Constitution CAA-NRC, 370,

itself and is founded on its essential facets. Explain the Sabrimala, Lt. Gov v.
doctrine of ‘Constitutional Morality’ with the help of Delhi
relevant judicial decisions.

FR Mains 2024 Analysis

Factors Outcomes

Anniversaries of judgements Anniversaries of Minority Rights, Property Rights, Digital

imp. constitutional amendements Art 19 and Art Rights , UCC Life - Death - Euthanasia
21 Scope of Art 14

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Imp SC cases in progress Press Freedom

Major HR issues in US, UK, and France
Election Year Context

DPSP

WHEN? WHAT? WHY?

2015 Discuss the possible factors that inhibit India from 30 years of Shah Bano
enacting for its citizen a uniform civil code as
provided for in the Directive Principles of State
Policy.

2023 Who are entitled to receive free legal aid? Assess the 1st National Lok Adalat,
role of the National Legal Services Authority(NALSA) 35 Years - Legal Services
in rendering free legal aid in India Auth Act.

DPSP Mains 2024 Analysis

Factors Outcomes

Anniversaries of judgements Anniversaries of imp. FR DPSP Relationship - Harmonious

constitutional amendements Anniversaries of Construction
landmark policy decisions Imp SC cases in
progress

Basic Structure

WHEN? WHAT? WHY?

2013 The Supreme Court of India keeps a check on 40 years - Kesavananda

arbitrary power of the Parliament in amending the Bharti Case
Constitution. Discuss critically.

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2016 What was held in the Coelho case? In this context, can 10 years* to case.
you say that judicial review is of key importance
amongst the basic features of the Constitution?

2019 Parliament’s Power to amend the Constitution is a Art 370 Abrogation, CAA
limited power and it cannot be enlarged into 2019
absolute power. In light of this statement explain
whether Parliament under Article 368 of the
Constitution can destroy the Basic Structure of the
Constitution by expanding it’s amending power.

Possible Ques
● Impact Analysis

Issue Matrix Pedagogy

Minority Rights Basic Structure & Harmonious Construction

Property Rights Property Rights -
Digital Rights Minority Rights
UCC UCC
Life - Death - Euthanasia Art 19 related issues
Scope of Art 14 Art 21 related issues
Press Freedom Art 19 & 21 related issues
FR-DPSP: Harmonious Construction Art 14 : Scope & Doctrines
Basic Structure Impact

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Basic Structure & Harmonious Construction

Amenability of FRs, Relationship between FRs and DPSP, Property Rights

Possible Questions?
● What is Basic Structure?
● What is the rationale behind it?
● What is the relationship between basic structure and constitutionalism?
● What is the relationship between basic structure and rule of law?
● How did it evolve?
● What was held in the Kesavananda Bharti Case?
● What has been included in the Basic Structure?
● What has been excluded in the Basic Structure?
● What is its impact on -
○ Judicial Review
○ Judicial Activism
○ Parliamentary Sovereignty
● What is the critical analysis of having such a doctrine?
● Can Basic Structure be amended/diluted?

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● What about other countries?

● What was held in the Minerva Mills Case? Why is the case important?
● What is the relationship between FR and DPSP?
● What is the nature and state of property rights in India?

What is Basic Structure? (Intro)

● It is a constitutional law doctrine that places restrictions on amending certain essential or basic
principles embedded in the Constitution
● Influenced by several radical constitutional amendments in Germany during the Weimar regime,
German Law Professor Conrad is responsible for the genesis of the basic structure doctrine.
● Though mentioned briefly during the Golak Nath case in 1967, the doctrine was cemented in the
landmark 13 judge SC case of Kesavananda Bharti in 1973
● The great lawyer Mr. Nani Palkiwala has been credited with persuading the SC to formulate the
doctrine of Basic Structure
● Hailed as a landmark in modern constitutional jurisprudence, one of India’s finest legal minds Zia
Mody credits this as the first case in her book ‘10 Judgments that changed India’

What is the rationale behind the doctrine of Basic Structure?

● Based on the theory of implied limitation.
● Parliamentary powers to amend the constitution must be subject to certain conditions or
limitations.
● This ensures the essence and purpose of written constitutions and constitutionalism to be intact.
● It also upholds the tenets of Rule of Law.
● “It balances the power of the Parliament to amend the Constitution and the Supreme Courts
Power of judicial review of those amendments” - Justice Ashok Ganguly, Landmark Judgements
that changed India

What is the relationship between basic structure and constitutionalism?

● Constitutionalism refers to the idea of limiting the powers of the State.
● A Constitution is a manifestation of the idea of constitutionalism. A Constitution, inter alia,
provides for the powers of the organs of the State. One such power is the power of the Parliament
to amend the Constitution itself.
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● If unchecked, this power may include the power to amend critical provisions of a Constitution
necessary to safeguard the rights of the people as well as democratic ideals.
● The doctrine of basic structure prevents the Parliament from amending those provisions in the
Constitution which the SC thinks to be absolutely necessary for the efficacious functioning of the
State.
● By restricting the amending powers of the Parliament, the Basic Structure upholds the principles
of Constitutionalism.

What is the relationship between basic structure and Rule Of Law?

● A.V. Dicey in his book ‘Introduction to the study of the Constitution’ in 1885 identified three
essentials of Rule of Law
● Absence of Arbitrary Power, Equality before Law, and Predominance of Legal Spirit.
● The Basic Structure Doctrine by limiting the powers of the Parliament to amend the essential or
basic features of the Constitution also limits the arbitrariness which would led to unlimited
powers of the Parliament to amend the Constitution.
● Furthermore, by recognising Judicial Review as one of the elements of Basic Structure, it also
upholds the principle of predominance of legal spirit.

How did the doctrine of Basic Structure evolve?

● The Socialist Prologue
○ It began with a series of Land Reform Acts passes by several state legislatures such as
Madras, Bombay, Bihar etc.
○ These Acts aimed at curtailing the quantum of land ownership leading to excess land
being compulsory purchased by the government to be redistributed amongst those who
were landless.
○ The socialist Acts were challenged at several High Courts by land owners claiming a
violation of then existing fundamental right to Property contained in Art 19(1)(f) as well as
Art 31. Additionally, Art 14 and 21 were also claimed to the violated as the Acts only aimed
at excess land onwers and deprivation of their own property could be considered a
violation of Art 21.
○ The cases received a mixed response with some High Courts invalidated the Acts while
some upheld them.
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○ The Constitutional Context

■ In response to this apparent chaos, the Parliament amended the Constitution in
1951 (1st CA, 1951) inserting
■ Art 31 A and Art 31 B which allowed for the govt to acquire property without
affecting FRs and inserting the Ninth Schedule which gave immunity to any law
from judicial scrutiny placed under it.
■ Several Acts were incrementally placed under the Ninth Schedule. Consequently,
the amendments through which the acts were placed under the Ninth Schedule
were challenged.
○ The Legal Questions : On the pretext of hearing challenges to amendments inserting land
reform Acts to the Ninth Schedule, the SC framed larger questions :
■ Does ‘law’ as per Art 13(2) include Constitutional Amendments?

What is the extent to which the Parliament can amend the Constitution?

Issue Shankari Prasad Golak Nath Kesavanad Minerva Waman IR Coelho (2006)
(1951) & Sajjan (1967) [6:5] a Bharti Mills Rao(1981)
Singh (1967) (1973) [7:6] (1980)
[3:2] [4;1*]

C.A law No Yes No Status Status Status Quo

as per Quo Quo
13(2)

Extent Unlimited, Parl Limited - FR Limited by Reaffir Basic JR of pre 1973

of Parl has Constituent could not be Basic med Structure additions to IXth
powers powers to amended, Structure, Basic applies to Schedule as well.
amend u/a 368 no overruled Structur amendme
distinction Golaknath, e, nt and the
between inter alia 39(b)(c) laws
Constituent JR is Basic > added to
& Ordinary Structure, 14,19,31 IXth
powers, no JR of Schedule

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prospective pre 1973

overruling additions
to IXth
Schedule.

What was held in the Kesavananda Bharti Case?

● 24th CA, 1971 was valid
● 25th CA, 1971 was valid except for clause ousting judicial review
● 29th CA, 1971 was valid.
● Overruled Golak Nath, Parliament can amend FRs.
● Subject to the Doctrine of Basic Structure, no implied limitation on Parliament’s power to amend
the Constitution under Art 368
● Pre judgment additions to Ninth Schedule not subject to Judicial Review (prospective overruling)
● Special Remarks
○ Though the doctrine was evolved in this case, the seeds of Basic Structure were actually
sown in the Golak Nath case.
○ Upendra Baxi's words in 1974 that Kesavananda was the Indian Constitution of the future
turned out to be ncar prophetic
○ In delineating the basic structure of the Constitution, most judges relied upon the
Preamble, the fundamental rights and the direcrive principles of state policy.

What has been included in the Doctrine of Basic Structure?

Core Constitutional Principles

Principles Cases

Supremacy of the Kesavanada Bharti v. State of Kerala (1973) SR Bommai v. Union of

Constitution India (1994)

Rule of Law Indira Gandhi v. Raj Narain (1975) Indira Sawhney v. Union of India
(1993) IR Coelho v. State of Tamil Nadu (2007)

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Separation of Powers Kesavanada Bharti v. State of Kerala (1973) SR Bommai v. Union of

India (1994) IR Coelho v. State of Tamil Nadu (2007)

Federalism Kesavanada Bharti v. State of Kerala (1973) SR Bommai v. Union of

India (1994)

Limitations of amending Minerva Mills v. Union of India (1980)

power under Art 368

Core Constitutional Features: Rights etc.

Principles Cases

Principles behind Kesavanada Bharti v. State of Kerala (1973) IR Coelho v. State of Tamil
Fundamental Rights Nadu (2007)

Secularism Kesavanada Bharti v. State of Kerala (1973) SR Bommai v. Union of

India (1994) Sri Adi Vishveshwarya of Kashi Vishwanath Temple,
Varanasi v. State of UP (1997)

Balance between FRs Minerva Mills v. Union of India (1980)

and DPSPs

Concept of social and Kesavanada Bharti v. State of Kerala (1973) Bhim Singh JI v. Union of
economic justice, DPSP India (1981)
in toto

Objectives specified in Kesavanada Bharti v. State of Kerala (1973)

the Preamble

Democracy Related

Principles Cases

Parliamentary System of Govt Kesavanada Bharti v. State of Kerala (1973)

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Principle of free and fair elections Kihoto Hollohan v. Zachillu (1993)

Parliamentary Democracy & Multi Party Kuldip Nayar v. Union of India (2006)
Systems

Judiciary Related

Principles Cases

Independent & Efficient Registrar (Admin) v. Sisir Kant Satapathy (1999)

Judicial Systems

SC Powers under Art 32, Delhi Judicial Service Association v. State of Gujarat (1991)
136, 141, 142

Effective Access to Central Coal Fields v. Jaiswal Coal Co. (1980)

Justice

Judicial Review, Art 32, Kesavanada Bharti v. State of Kerala (1973) Indira Gandhi v. Raj
Art 226/227 Narain (1975) Minerva Mills v. Union of India (1980) SP Sampat
Kumar v. Union of India (1987) L Chandra Kumar v. Union of India
(1997)

Independence of SC AoR Assn. v. Union of India (1994)

Judiciary

What has been excluded in the Doctrine of Basic Structure?

Provision Description

Art 31A (1st CA, 1951) Acquisition of estates, attempts to remove inequalities in the matter
of agricultural holdings (Waman Rao v. UoI, 1981)

Art 105(2) Even though Parliamentary Democracy is a basic feature of our

Constitution, the rights and immunities under Art 105(2) cannot be

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elevated as FRs or basic feature to invalidate insertion of Xth

Schedule (Kihoto Hollohan v. Zachillu, 1993)

Art 334 amendment via Extending reservation for SC, ST, Anglo Indians in Legislatures
45 CA 1978

Fi h Schedule and Temporary Provision and CA under 368 not required to amend it.
amendments [SC AoR Assn. v. Union of India (1994)]

323A (Tribunals) via Takes away service matters jurisdiction from HC and Civil Courts.
42nd CA, 1976 [SP Sampat Kumar v. Union of India (1987) & L Chandra Kumar v.
Union of India (1997)]

Amendment taking Sankari Prasad Singh Deo v. Union of India (1951)

away a FR

What is the impact of the judgement and the doctrine of Basic Structure?
● Chief Justice of India Dr DY Chandrachud has called the ‘basic structure doctrine’ a north star
“which guides and gives a certain direction to the interpreters and implementers of the
Constitution when the path ahead is convoluted.”.
● Impact :
○ Judiciary v. Parliament : Checks & Balances
■ While the Supreme Court's decisionin Golak Nath was the first significant sign of
judicial supremacy in constitutional interpretation, Kesavananda firmly
established that the Supreme Court was unmatched in authority when it came to
constitutional matters.
■ The Supreme Court made a strategic retreat over amendments to fundamental
rights but significantly broadened the scope of its judicial review by assuming the
power to scrutinise all constitutional amendments-not just those affecting
fundamental rights.
■ If the Parliament had an unfettered right to amend the Constitution, the Supreme
Court had a coextensive power to review and invalidate any amendment that
violated its basic structure.

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■ To an extent, the judges who recognised the Basic Structure Doctrine sought to
achieve a win-win situation for Parliament & Supreme Court.
○ Constitutionalism Above all
■ Kesavananda recognises the distinction between the dra ing and working of the
Constitution.
■ The decision in Kesavananda ensured that the Parliament, which holds its
constituent power in trust for the people of India, can never change the
fundamental bases of India. The Parliament's power to amend is not limitless and
is always coextensive with that of the people
○ Domino Effect
■ The basic structure doctrine postulated in Kesavananda has been credited with
protecting the Indian state from collapsing like many of its South Asian
counterparts, whether through totalitarian rule, military coup or other
extra-constitutional means.
■ It has also protected India from moving in a 'sharply socialist direction'
○ Expansive Applications
■ For many years now, the Apex Court has applied the basic structure doctrine either
directly or tangentially, to invalidate ordinary legislations. It is a well-established
rule that there are two grounds based on which ordinary legislation gets tested,
namely, whether it attracts Art.13(1) and (2) bar of the constitution or not and
legislative competence. However, in the NJAC Case as well as Madras Bar Assn. v
Union of India (2015), the doctrine was held applicable to ordinary legislations as
well.
■ In the Elections case, the 39th CA, 1975 was struck down upholding Judicial Review
■ In the NJAC Case, the 99th CA, 2014 was struck down upholding Independence of
Judiciary as Basic Structure
■ Federalism was raised as an ingredient of basic structure in petitions challenging
abrogation of Art 370 which was eventually upheld recently by the SC in Re:
Abrogation of Art 370 in 2024.
■ Secularism as a part of Basic Structure has been argued in pending litigation
challenging the CAA 2019, review petitions post Sabrimala.

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● One of the most apt closure remarks to the impact of doctrine can be found with Michael Foley, in
his treatise The Silence of Constitutions', explained that what is said in the Constitution is
important but what is not said, but is implied in the silence from what is said, is equally
important.
● Judicial Review and Constitutional Supremacy: The doctrine reinforces the principle of judicial
review, granting the Indian judiciary the power to review and strike down laws that violate the
basic structure of the Constitution. This ensures the supremacy of the Constitution and prevents
the arbitrary exercise of power by the legislature.
● Fundamental Rights: The doctrine of basic structure acts as a safeguard for fundamental rights
enshrined in the Indian Constitution. It ensures that no constitutional amendment can dilute or
abrogate these rights, such as the right to equality, freedom of speech, or protection against
discrimination.
● Maintaining Federalism: The doctrine protects the basic structure of federalism in India. It
prevents the Parliament from altering the essential features of the federal structure, such as the
distribution of powers between the Union and the states. This has helped maintain the balance
between the central government and state governments. Secularism and
● Separation of Powers: The doctrine of basic structure upholds the principle of secularism and
the separation of powers. It prevents any amendment that undermines the secular character of
the Indian state or disturbs the delicate balance between the executive, legislative, and judicial
branches of government.
● Limiting Constitutional Amendments: The doctrine imposes limitations on the amending power
of the Parliament. While the Indian Constitution allows for amendments, the doctrine sets a
boundary by prohibiting amendments that violate the basic structure. This prevents the
Parliament from altering the Constitution in a manner that fundamentally transforms its
character.
● Evolution of the Constitution: The doctrine of basic structure allows for the evolution of the
Indian Constitution in response to changing societal needs and aspirations. While the basic
structure remains protected, the interpretation and application of the Constitution by the
judiciary have allowed for progressive developments in areas such as expanding fundamental
rights and inclusivity.

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What is the critical analysis of having such a doctrine?

● The Invisible hand
○ The basic structure doctrine finds no mention in the language of the Constitution
○ Opposes the original intent of the Constituent Assembly
○ The nexus the doctrine and the Constitution as it has been codified can be attributed more
accurately to spirit than to text.
● Lost in transition
○ Kesavananda has been condemned for being too lengthy, thus causing uncertainty about
what the eleven opinions collectively meanand what the basic structure actually
comprised. comprised. The judgement has also been described as one that provides an
'outstanding study on lack of consensus'.
○ The danger with the ambiguity of the basic structure doctrine is that each judge's
conception depends on his personal preferences and virtually vests amending power in
judges, resting on variable judicial perceptions and majorities.
● Democratic Dangers
○ The basic structure doctrine has also been sharply criticized as being
counter-majoritarian, and one that causes a democratic imbalance since it gives
inordinate power over constitutional amendments to the Supreme Court, an unelected
and self- appointed body

Can Basic Structure Doctrine be amended or dilluted?

● Since the basic structure or basic principles are not explicitly mentioned in the Constitution, these
features per se cannot be amended by Constitutional Amendments under Art 368. Therefore,
possibilities of a new constitution or replacing a core feature such as a parliamentary system of
government arise for which there are usually the following choices
○ Revolution - Highly unlikely in a written constitution
○ Parliament itselt converting into a Constituent Assembly - would have been possible Pre
Minerva Mills but post, the limited power to amend the Constitution is itself Basic
Structure
○ Referendum - Would not have any effect on the power of the Parliament to amend anyway

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■ Acc. to DD Basu, in his book Shorter Constitution of India, Vol II, - he suggests
referendum as as a mode by passing a Constitution Amendment providing for the
same.
○ Higher Bench - Review : This is technically possible and was attempted before in 1975
during the emergency.
■ However, the review was inexplicably and suddenly abandoned. There's no official
report or record concerning the said review. Such an attempt occurred during an
emergency when there were restrictions regarding the reporting of court decisions
by the press
○ Constitutional Amendments to dilute basic features : This was attempted previous via the
25th, 42nd, and 44th CA, 1978 but were eventually struck down as violative of Basic
Structure.

What about other countries?

● Amending Powers
○ Constitution of England,
■ being mostly unwritten, is mostly impacted by constitutional values and doctrine
and is amendable by a simple majority of the legislature or by judicial decisions not
challenged by the state
■ International agreements, custom and traditional usage which has acquired
constitutional status, can also amend the Constitution. Recently, the Human Rights
Act (HRA), 1998, articulating European Convention Rights, has acquired the status
of a constitutional document and is a major influence on English constitutional
jurisprudence, but is now back to square one due to BREXIT
○ American Constitution
■ It can be amended under Article 5, when two-thirds of both houses of Congress
propose amendments or when Congress is required by two-thirds of the state
legislatures to call a constitutional convention. Amendments have to be ratified by
three-fourths of the state legislature or conventions made on the mode of
ratification proposed by Congress. No amendment, however, can deprive any state
of equal voting rights in the senate without its consent.

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○ The Australian Constitution

■ Proposed amendment has to be initiated by an absolute majority in each house,
and a er it is passed, a referendum has to be held.
● BSD gone global
○ Portugal and Greece's constitution has listed out all their un-amendable provisions
○ Several nations like Italy and France have only attempted to protect one or two central
principles like the Republican form of Government
○ Even the courts in Pakistan, in 2015, have recognised the implied limitations on
parliament's amending powers and declared Judiciary, Democracy, and Parliamentary
form of Government as the basic structure
○ In Thailand, there's no specific mention of the doctrine, but they have also listed their
un-amendable provisions
○ Further, the Australian courts have also recognised the limitations on the law-making
powers of the parliament, emanating from their constitution
○ Britain, where the courts have realised the need to consider the question of whether there
is any fundamental that cannot be abolished even by a sovereign parliament

What was held in the Minerva Mills Case? Why is the case important?
Context
● The decision in Minerva Mills is another milestone, which prevented Parliament from overriding
the basic structure doctrine in Kesavananda Bharati by enacting the Constitution (42nd
Amendment) Act, 1976.
● The challenge to the nationalization of Minerva Mills, a textile undertaking, could not be made in
view of the 42nd Constitution Amendment Act, which barred a challenge to the law of
nationalisation, as thesaid Nationalisation Act was included vide entry 105 to the 9th Schedule to
the Constitution

The Legal Questions

● Minerva Mills, by filing an Article 32 writ petition, challenged the constitutional validity of
provions of the 42nd Constitution Amendment Act, inter alia, on the touchstone of the basic
structure theory.

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● Amendment of Art 31C : now provided supremacy to all the Directive Principles contained in Part
IV over Fundamental Rights contained in Articles 14, 19 and 31
● Insertion of Article 368(4) : According to the new clause, no amendment made under the
provisions of Article 368 could be challenged in a Court of Law on any ground.
● Insertion of Article 368(5) : According to the new clause, there was no limitation on the constituent
power of the Parliament to amend the Constitution

The Outcome :
● The Court held that Article 368(4) and Article 368(5) inserted by the 42" Amendment Act (Section
55) were unconstitutional as it affected the power of Judicial Review which was regarded as part
of the basic structure of the Constitution
● The Court struck down the change made to Article 31C and restored it to the pre 42nd
Amendment Act position. (Article 31C provided supremacy to the Directive Principles contained in
Articles 39(b) and (c) over Fundamental Rights contained in Articles 14, 19 and 31.)

Impact
● Limitations on Parliament to amend the Constitution under Art 368 as well as a balance between
FRs and DPSPs were both identified as components of Basic Structure.
● The erstwhile owners ofminerva Mills continued to contest the nationalization on different
grounds, only to ultimately fail at the Supreme Court in September 1986
● Minerva Mills case undoubtedly set the tone for the ture o he basic structure doctrine in India
● Four decades a er the Minerva Mills judgement, the official version of the Constitution published
by the government includes a small tribute to the judgement.
● Chintan Chandrachud in his book, ‘The Cases that India India Forgot’ opens with Minerva Mills as
the first case that thwarted the final attempts made by the government to disrupt the doctrine of
Basic Structure

What is the relationship between FRs and DPSPs?

Context
● The Directive Principles differ from Fundamental Rights which enjoin the state to refrain from
taking prejudicial action against an individual and, thus, impose a negative duty on the state.
● Fundamental Rights seek to introduce an egalitarian society and to ensure liberty for all
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● Directive Principles seek to achieve a welfare state. The two together constitute the conscience of
the Constitution. Infact, the Preamble, the Fundamental Rights and the Directive Principles can
be characterised as the trinity of the Constitution - M.P. Jain

Differences
● The Directives are not enforceable in the courts and as such, do not create any justiciable rights
in favour of individuals.
● The Directives require to be implemented by legislation, and so long as there is no law carrying
out the policy laid down in a Directive neither the State nor the individual can violate any existing
law or legal right under colour of following a Directive. [Mangru vs. Commissioner of Budge
Budge, (1951)]

● The Directives, per se, do not confer upon or take away any legislative power from the appropriate
legislature. Legislative competence must be sought from the Legislative Lists contained in the 7th
Schedule of the Constitution. [Deep Chand vs. State of U.P., AIR 1959]
● The Courts cannot declare any law as void on the ground that it contravenes any of the Directive
Principles

The Balancing Act

● The Supreme Court in State of Kerala v. N.M. Thomas (1973), observed that the Directive
Principles and Fundamental Right should be construed in harmony with each other and every
attempt should be made by the Court to resolve any apparent inconsistency between them.

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● The Supreme Court has observed in Olga Tellis (1986), that since the Directive Principles are
fundamental in the governance of the country they must, therefore, be regarded as equally
fundamental to the understanding and interpretation of the meaning and content of
Fundamental Right.
● Instead of becoming a stumbling block, the judiciary has now taken itself the responsibility of
implementing the Directive Principles.
○ Rights. In Unnikrishnan v. State of A.P. (1993) the Directive Principle contained in Art. 45
has been raised to the status of a Fundamental Right. (RTE)
○ ‘equal pay for equal work’ has been held to be a Fundamental Right in Randhir Singh vs.
Union of India (1982)
○ In H.M Hoskot vs. State of Maharashtra (1978) it has been held that “legal aid” and “speed
trial” are fundamental rights under Art. 21 available to all prisoners and can be enforced.

What is the nature and state of Property Rights in India?

Context
● In Property Owners Association v State of Maharashtra, The Supreme Court will decide if private
property can be considered “material resources of the community” under Article 39(b) of the
Constitution.

Evolution
● Right to property was removed from the Fundamental Rights by the 44 Constitutional
Amendment Act 1978
○ The original Constitution included following rights
■ Article 19 (1) (f): It included Right to lawfully acquire, hold and dispose off property
subject to reasonable restriction in public interest and in the interest of Scheduled
Tribes.
■ Article 31 (1): Under this no person can be deprived of his property except by
authority of law. By executive action the State can acquire the property as any
other person by paying market value of the property. Butto complete the individual
to sell the property the government needs law
■ Article 31 (2): The State can only acquire property for the public purposes and the
State should pay the compensation.
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● Changes made :
○ 1st CA, 1951
■ Art 31A : If a law is made to acquire large estates from Zamindars itwill not be
declared to be invalid on grounds of violation of Article 14 and 19
■ Art 31B : Ninth Schedule - No JR
○ 4th CA, 1955 : It amended Article 31 (2) and it added that the compensation cannot be
challenged on the ground that the compensation is inadequate. Still the Court maintained
that the compensation must befairand just
○ 25th CA, 1971 :
■ Art 31C : Art 39(b) & (c) > 14, 19, 31
○ 44 CA 1978
■ Article 19 (1) (f) and 31 (2) were eliminated/repealed
■ Article 31 (1) was removed from Part 3 and the same provision was made legal
rightand placed under Article 300A

Why is the SC deciding on Private Property and what can happen?

● Article 31C protects laws enacted to ensure the “material resources of the community” are
distributed to serve the common good (Article 39(b)) and that wealth and the means of
production are not “concentrated” to the “common detriment” (Article 39(c)).
● As per Article 31C, these particular directive principles (Articles 39(b) and 39(c)) cannot be
challenged by invoking the right to equality (Article 14) or the rights under Article 19 (freedom of
speech, right to assemble peacefully, etc).
● Article 31C was introduced by The Constitution (Twenty-fi h) Amendment Act, 1971 in response
to the Bank Nationalisation Case
○ Rustom Cavasjee Cooper vs Union Of India (1970), in which the Supreme Court stopped
the Centre from acquiring control of 14 commercial banks by enacting The Banking
Companies (Acquisition and Transfer of Undertakings) Act, 1969.
○ An eleven-judge Bench struck the Act down by referring to the now-repealed Article 31(2),
which said that the government could not acquire any property for public purposes under
any law unless the law fixes compensation for the property, or specifies the principles on
which compensation will be based.

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○ In the Bank Nationalisation case, the court held that the ‘right to compensation’ was not
appropriately ensured by the Banking Act.
● The 25th amendment was challenged in the seminal Kesavananda Bharati case (1973) in which
13 judges held by a narrow 7-6 majority that the Constitution has a ‘basic structue’ that cannot be
altered, even by a constitutional amendment.
○ As a part of this verdict, the court struck down the last portion of Article 31C,
○ This opened the door for the court to examine laws that had been enacted to further
Articles 39(b) and 39(c), to determine whether the purpose of those laws actually lined up
with the principles espoused in these provisions.
● In 1980, in its judgment in Minerva Mills v. Union of India, the SC struck down clauses 4 and 5 of
the amendment. The five-judge Bench held that Parliament’s power to amend the Constitution
was limited, and it could not be used to remove these limitations and grant itself “unlimited” and
“absolute” powers of amendment
○ By striking down part of the 25th amendment, did the court strike down Article 31C as a
whole, or did it restore the post-Kesavananda Bharati position wherein Articles 39(b) and
(c) remained protected?
● Since 1977, the apex court has weighed in on the interpretation of Article 39(b) on multiple
occasions — most notably, in State of Karnataka v Shri Ranganatha Reddy (1977). This case saw a
seven-judge Bench, by a 4:3 majority, holding that privately owned resources did not fall within
the ambit of “material resources of the community”. However, it was Justice Krishna Iyer’s
minority opinion which would become influential in years to come. Justice Iyer had held that
privately owned resources must also be considered material resources of the community.

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Part I: Polity and Governance

Theme 2: Preamble, FR, DPSP, FD
Lecture 2.3.

Issue Matrix Pedagogy

1. Minority Rights 1. Minority Rights

2. Property Rights 2. Criminal Justice Rights
3. Digital Rights 3. UCC
4. UCC 4. Art 19 related issues
5. Life - Death - Euthanasia 5. Art 21 related issues
6. Scope of Art 14 6. Art 19 & 21 related issues
7. Press Freedom FR-DPSP: 7. DPSP Analysis
Harmonious Construction 8. FD Analysis
8. Basic Structure Impact

Minority Rights

Possible Questions?

1. What is the overall policy structure for Minority Rights in India?

2. Who are Minorities and how are they defined?
3. What are Minority Institutions and how are they defined?
4. What has meaning, scope, and interrelationship of Arts 29 and 30 What has
been the court jurisprudence w.r.t to Minority Rights?
5. How should Minority Institutions be treated and balanced?

Introduction

● India is a multi-religious, multicultural, multilingual and multi-racial country,

interwoven into an innate unity by the common thread of national integration and
communal harmony.

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● As per the Census 2011, the percentage of minorities in the country is about
19.3% of the total population of the country.
● When the Indian Constitution was drafted, there was near consensus on
providing for a set of rights specifically protecting minorities, in addition to the
fundamental rights available to all citizens
● Despite this historical consensus, the right of minorities to administer and
establish educational institutions under Article 30(1) has become one of the
most contested rights under the Constitution. Despite several constitutional
bench decisions of the Supreme Court and two constitutional amendments, the
scope of the right remains uncertain.
● In the Constituent Assembly, the Sub-Committee on Minorities under the
Chairmanship of H.C Mookerjee was appointed to examine the draft clauses
recommended by the Fundamental Rights Committee and propose relevant
changes or additions to ensure the protection of minority rights..
● Art 29 and 30 specifically protect the cultural and educational rights of all citizens
as well as rights of minorities along with other provisions.
● Internationally, the following documents identify minority rights
○ Article 27 of the United Nations Declaration on Human Rights
○ Article 27 of International Covenant on Civil and Political Rights
○ Article 15 of International Covenant on Economic, Social and Cultural
Rights
○ Article 2 of Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities
● The SC recently in Feb 2024 has finished hearing final arguments in the case of
Aligarh Muslim University Through its Registrar Faizan Mustafa v Naresh
Agarwal to determine
○ Whether AMU can retain its status as a Minority Institution?
○ What are the grounds on the basis of which an institution can be declared
as a Minority Institution?
○ Can an educational institution created by a Parliamentary Statute enjoy
Minority Status under Art 30?

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2. Who are minorities and how are they defined?

● Not defined as per the Constitution
● Muslims, Sikhs, Christians, Buddhists, Jain and Zoroastrians (Parsis) have been
notified as minority communities under Section 2 (c) of the National Commission
for Minorities Act, 1992.
○ However the Act does not spell out the criteria for determination of
minorities
○ In Re: Kerala Bill Case (1958), that “a minority” means a community which
is numerically less than 50 per cent.
○ In T.M.A. Pai Foundation Case (2002), SC affirmed that the criteria for
determining minority shall be the population of the state.
■ The Apex Court taking clue from the provisions of the State
Reorganisation Act held that in view of India having been divided
into different linguistic States, carved out on the basis of the
language of the majority of persons of that region, it is the State,
and not the whole of India, that shall have to be taken as the unit
for determining linguistic minority vis-a-vis Article 30.
■ The same test has been held to be applicable to religious
minorities.

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■ Thus, the term minorities refer to those communities who are

numerically less than 50% in a State on the basis of state
population.
● As per the Census 2011, the percentage of minorities in the country is about
19.3% of the total population of the country.
○ The population of Muslims are 14.2%; Christians 2.3%; Sikhs 1.7%,
Buddhists 0.7%, Jain 0.4% and Parsis 0.006%.
3. What are Minority Institutions and how are they defined?
● The Constitution of India confers the right on the minorities to establish
educational institutions of their choice and gives them protections in Article 30.
○ However, it does not define the term “minority educational institutions”
● The National Commission for Minority Educational Institutions Act, 2004 defines
the term to means a college or institution (other than a University) established or
maintained by a person or group of persons from amongst the minorities.
● Central Educational Institutions (Reservation in Admission) Act, 2006 defines
“Minority Educational Institutions” to mean an institution established and
administered by minorities under clause(1) of Article 30 of the Constitution and
so declared by an Act of Parliament or by the Central Government or declared as
a Minority Educational Institution under the National Commission for Minority
Educational Institutions Act, 2004.
● No criteria or parameters are mentioned under any law however under
educational reservation under Art 15 shall not be applicable to minority
educational institutions.
● In AP Christians Medical Educational Society v Government of Andhra Pradesh
(1986) DAV College v. State of Maharashtra (2013), the SC identified the
following criteria :
○ The Institution has been established by members of a community which
are a minority in that State
○ The Institution is administered by members of a community which are a
minority in that State .
○ The Institution is primarily for the benefit of the minority community of the
state which is established.
4. What has meaning, scope, and interrelationship of Arts 29 and 30

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● Collectively, Arts 29 and 30 confer four distinct rights :

○ Right of any section of citizens to conserve its own language, script, or
culture [Art29(1)].
○ Right of all religious or linguistic minorities to establish and administer
educational institutions of their choice [Art30(1)].
○ Right of an educational institution not to be discriminated against in the
matter of State aid on the ground that it is under management of a
minority [Art30(2)].
○ Right of a citizen not be denied admission into a State maintained or a
State aided educational institution on ground only of religion, race, case,
or language [Art 29(2)].
● These are intended to be protections more than a right [PA Inamdar v. State of
Maharashtra (2005)].

What has meaning, scope, and interrelationship of Arts 29 and 30

● Scope
○ The right conferred by Article 29(1) has been held to be an absolute right
and it cannot be subjected to reasonable restrictions embodied in Article
19(6).
○ Right to conserve language includes, as a necessary concomitant, right to
agitate for the protection of that language.

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○ Whereas Art 29(1) protects rights of section of citizens, Art 29(2) confers
an individual right on a citizen not to be denied admission in any State
owned or State aided educational institutional on the ground only of
religion, race, caste, language or any of them.
○ Article 15(4) provides that the State is entitled to make provision for
reservation for the advancement of any socially and educationally
backward classes of citizens or for schedule castes and schedule tribes.
Article 15(4) is an enabling provision and is in the nature of an exception
to Article 29(2) whereas Article 29(2) is a substantive fundamental right to
admission in State owned or State aided education institutions. However,
any such reservation mode under Article 15(4) should be reasonable and
should not take away the minority character of the institution.
● Interrelationship [Xaviers College v. State of Gujarat (1974)]
○ Article 29 is not confined to minorities but extend to all sections of citizens.
○ Article 30(1) is not controlled by Article 29(1).
○ 29(1). Article 30 though dealing with those minorities which have a distinct
language, culture or script but its scope is not narrow.
○ Article 30(1) confers the right to establish and administer educational
institutions of minorities choice.
○ For enjoyment of rights conferred under Article 29(1), it is not necessary
to establish educational institutions and the right can be exercised
otherwise also.

5. What has been the court jurisprudence w.r.t to Minority Rights?

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Rights of Minority Institutions

The SC through its various judgments such as Xaviers, TMA Pai, PA Inamdar etc.
elucidated the following rights
1. to admit students
2. to set up a reasonable fee structure
3. to constitute and manage a governing body
4. to choose its teachers and management staff
5. to take action upon dereliction of duty
6. to use properties and assets for benefit of the Institution

6. How should Minority Institutions be treated and balanced?

● Few areas have been the subject of more vexed constitutional litigation in
India than the rights of minority educational institutions.
● The National Commission for Minorities does not have any statutory
powers to enforce or determine statuses
● Minority Institutions certainly have a better standing on property than
others.
● Harmonious Construction is the way forward
● “Even if you are a minority of one, the truth is the truth” - Gandhi

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Criminal Justice

Possible Questions?

How does our Constitution deal with Criminal Justice?

Inter GS & Essay Operability

What are the key features of the new criminal laws?

How does our Constitution deal with Criminal Justice?

Introduction

The Constitution address criminal justice primarily through :

● Art 20 & Art 22 : Criminal Process Rights

● Art 21 : Fair trial gaurantees read in by the Court
● Article 20 & 21 cannot be suspended even during a national emergency.
● Members of the assembly recognised that drafting criminal process safeguards
involved balancing the goals of individual liberty and social control
● 3 New laws replacing the IPC, CrPC, and the Indian Evidence Act
● The interface between criminal law and the Constitution highlights a classic
debate in political liberalism: where and how to draw the line between individual
liberty and social control
● Criminal law deals with the State’s use of its coercive powers to limit individual
liberty in the interest of some conception of the public good such as State
security or public order, and criminal procedure describes the processes
employed by the State to investigate and prosecute a crime, thus achieving the
public good.

Art 20(1) : No Ex Post Facto Laws

● The essence of the non-retroactivity principle is that a person should never be
convicted or punished except in accordance with previously declared offence
governing the conduct in question.
○ Prohibits conviction and sentence. No one should be punished for
something, which was lawful when it was done.

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● Art. 20(1) limits the right of the sovereign legislature in a limited manner.
● Also found in Article 11(2) of the Universal Declaration of Human Rights, 1948
and the US Constitution
● Why?
○ An ex-post facto law is seen as ‘highly inequitable and unjust’ because it
does not give fair warning to an individual that her conduct is proscribed,
and punishes her for an act that she was otherwise free to do.
○ Ex-post facto laws can be misused by a State bent on persecuting an
individual, since the State could criminalise an action that was lawful
when it took place, or remove protective procedural rules in order to
overcome a deficiency in legal proof.
● What? In India, the guarantee against ex-post facto laws comprises two distinct
parts.
○ The first prohibits conviction for an act that was not an offence at the time of its
commission.
○ The second proscribes retrospective enhancement of penalty.
● Interpretations :
○ Applying new rules retroactively, which create new assumptions against
the accused or shift the burden of proof onto them, is not prohibited by
Article 20(1). [Sajjan Singh v. UoI (1965)].
○ This immunity does not extend to a civil liability and is restricted only to
conviction or sentence. [Lt. Col. V. D. Bhanot v Savita Bhanot (2012)].
○ Distinction between penalty and offence. For eg tax penalty [Shiv Dutt Rai
Fateh Chand v Union of India (1983)].
○ Art. 20 applies only to cases of retrospective increase of penalty for an
offence. [Maya Rani Punj v I.T. Commr. Delhi (1986)].
○ Retrospective change in the venue of trial does not attract the application
of Art. 20 (1). [Union of India v SukumarPye (1966)].
Art 20(2) : No Double Jeopardy
● Bars the retrial of a person, when he has been convicted and sentenced for the
same offence.
● In common law if a person is charged again for the same offence in an English
court, he can plead, as a complete defence, his former acquittal or conviction,
i.e. the plea of autrefois acquit or autrefois convict.

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● The American Constitution is embodies this in the Fifth Amendment. The

expression ‘double jeopardy’ is one of American law and is not used in our
Constitution
● Also in sec 337 BNSS, carried forward from sec 300 of previous CrPC
● Why?
○ It is based upon the principle of ‘double jeopardy’ clause and lays down
that no person should be put in jeopardy of his life or liberty more than
once.
○ What? following two requisites are to be fulfilled :
○ The person must be accused of an “offence”.
○ The person must have been prosecuted and convicted before a court or a
judicial tribunal.
● Interpretations
○ Narrow Scope: If a person has been prosecuted for an offence but
acquitted, then he can be prosecuted for the same offence again and
punished. The scope of Art.20 (2) has thus been very much narrowed
down by judicial interpretation [SA Venkataraman v Union of India (1954)].
○ It does not bar a civil trial, administrative proceedings, or any other
non-criminal proceeding arising out of the same transaction for which a
person has been prosecuted and punished in a criminal proceeding
[Maqbool Hussain v State of Bombay (1953)].
○ Proceedings before quasi-judicial bodies are also not barred by, and do
not further bar, a prosecution before a criminal court [Thomas Dana v
State of Punjab (1959)].
○ Double punishment is not barred if there are two distinct and separate
offences with different ingredients under two different enactments.
Art 20(3) : No Self Incrimination
● Right to Silence is implicit in protection against self incrimination
○ The right to refusal to answer questions that may incriminate a person is a
procedural safeguard which has gradually evolved in common law and
bears a close relation to the “right to fair trial”.
● Some of the aspects relating to right to silence have been embodied in the
Universal Declaration of Human Rights, 1948; the International Covenant on

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Civil and Political Rights, 1966 and the European Convention for the Protection
of Human Rights and Fundamental Freedoms.
● The Fifth Amendment of the United States Constitution provides that no person
shall be compelled in any criminal case, to be a witness against himself. This
privilege is also available to the witnesses besides the accused.
● Under the English Law, a witness is protected from answering questions which
may lead to criminal prosecution or any other penalty or forfeiture.
● Why?
● In the absence of such protection there is likelihood of the accused being
subjected to the third degree treatment so as to ‘entrap him into fatal
contradictions’
● What?
● Burden is on the State/the prosecution to prove the guilt of the accused.
● Accused is presumed to be innocent until proved to be guilty beyond any
reasonable doubt.
● Right of the accused against self incrimination, namely, the right to be silent and
that he cannot be compelled to incriminate himself
● Interpretations
● Essential Components
○ it is a right pertaining to a person accused of an offence.
○ There should be formal accusation levelled, in the form of First
Information Report or complaint relating to the commission of an offence
before a magistrate competent to try the offence.
○ it is a protection against compulsion to be a witness.
○ it is a protection against such compulsion resulting in his giving evidence
against himself.
Art 20(3) : No Self Incrimination (contd)
Interpretations
Essential Components
● it is a right pertaining to a person accused of an offence
● There should be formal accusation levelled, in the form of First Information
Report or complaint relating to the commission of an offence before a magistrate
competent to try the offence [[Link] v Satish Chandra (1954)].

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● it is a protection against compulsion to be a witness comprises both oral and

documentary evidence [[Link] v Satish Chandra (1954)].
● A person is not a ‘witness’ when she produces physical objects or provides
thumb impressions, handwriting samples, or other bodily substances using
which she may be identified [State of Bombay v Kathi Kalu Oghad 1961].
● it is a protection against such compulsion resulting in his giving evidence against
himself.
● ‘testimonial compulsion’ is not limited to the stage of trial in the court room but
may well extend to compelled testimony previously obtained from him outside
the court. [Ayub v State of Uttar Pradesh (2002)].
● Brain Electrical Activation Profile (BEAP) test and Polygraph test, during the
course of investigation would be an unjustified intrusion into mental privacy and
would be violative of the “right against self-incrimination” [41Selvi v State of
Karnataka (2010)].
● This prohibition is not attracted where any object or document is searched or
seized from the possession of the accused.
● Does not extend to the parties and witnesses in civil or any other proceedings.
Fair Trial Rights (Art 21)
Interpretations
Maneke Gandhi v. UoI (1978)
● The Supreme Court has read a guarantee of ‘fair trial’ expanded ‘procedure
established by law’ clause of Article 21.
● While the Court has found it difficult to articulate an ‘analytical,
all-comprehensive or exhaustive definition of the concept of a fair trial, case
laws identify the following :
○ the State should justify every deprivation of life or liberty before an
impartial tribunal 350 -J Jayalalithaa v State of Karnataka (2014).
○ the accused should be presumed innocent - Sahara India Real Estate
Corpn Ltd v SEBI (2012).
○ the State should prove her guilt beyond reasonable doubt - Rafiq Ahmad v
State of Uttar Pradesh (2011).
○ the right of the accused to receive fair opportunity to defend herself
against such charges and prove her innocence - Manu Sharma v State
(NCT of Delhi) (2010)

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○ principles of natural justice - MH Hoskot v Maharashtra (1978)

○ the fair opportunity of defence includes the concomitant right to put
forward a defence - Natasha Singh v CBI (2013)
○ to receive legal assistance - Natasha Singh v CBI (2013)
○ to adduce evidence in support of one’s case - Natasha Singh v CBI (2013)
○ to receive fair disclosure of exculpatory evidence - VN Sasikala v State
(2012)
○ to appeal the decision to at least one other tribunal - VN Sasikala v State
(2012)
○ the right to speedy trial - Abdul Rehman Antulay v RS Nayak (1992)
Art 22 : Arrest & Preventive Detention
● Arrest is a legal process which takes away personal liberty otherwise recognised
as a fundamental right and guaranteed as such to all persons.
● An arrest has serious ramifications and thus can only be made under the
authority of law and in accordance with that law.
● Article 22 provides the procedural safeguards against arbitrary arrest and
detention.
● Also mentioned in the Universal Declaration of Human Rights, 1948; the
International Covenant on Civil and Political Rights, 1966 and the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
● Parliament and State Legislatures can both make PD Laws, even in peace unlike
the west.
○ Entry 9, List I, Under entry 3 List III, Residuary Power
● There are three rights that stand independent of each other
○ the right to be made aware of the reason of arrest as soon as an arrest is
made
■ DK Basu v. State of West Bengal (1997)
● the right to be produced before a Magistrate within twenty-four hours
○ State of Uttar Pradesh v Abdul Samad AIR 1962
■ Its purpose is to enable the person arrested to be released on bail,
or other provision made for his proper custody, while the
investigation is pending for the offences with which he is charged
pending an enquiry or trial.
● the right to be defended by a lawyer of own choice

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○ Mohd Ajmal Amir Kasab v State of Maharashtra (2012)

■ Failure to provide legal counsel during the pre-trial stage would not
vitiate the trial, unless shown to cause material prejudice to the
accused.
● The rights given by Article 22(1) and (2) are absolute in themselves and do not
depend on other laws.
● Art. 22 (3) & (4) enact two exceptions to the fundamental rights otherwise
guaranteed to the arrested persons under Clause (1) & (2), i.e., these
protections are not available in case of an enemy alien and a person arrested or
detained under any law providing for preventive detention.
Art 22 : Arrest & Preventive Detention
Interpretations
D.K. Basu v State of West Bengal : (1997)
● Police Personnel : accurate, visible and clear identification and name tags with
their designation and their particulars must be recorded in a register
● A memo of arrest shall be prepared by the police officer at the time of arrest,
which shall be attested by at least one witness, who may either be a family
member of the arrestee or a respectable person of the locality from where the
arrest is made.
● Arrestee or the detenue who is in custody in a police station or interrogation
centre or other lock-up, shall be entitled to have a friend, relative or other
person known to him or having interest in his welfare to be informed, as soon
as practicable, about his arrest or detention at a particular place.
● A trained doctor on the panel of approved doctors appointed by the Director,
Health Services, should be conducting medical examination of the arrestee
every 48 hours while he is detention in custody
● Permission may be given to the arrestee to meet his lawyer during
interrogation, but not throughout the interrogation.
New Criminal Laws
● The Bharatiya Nyaya Sanhita : New IPC
● Bharatiya Nagrik Suraksha Sanhita (BNSS) : New CrPC
● Bharatiya Sakshya Adhiniyam : New IEA

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Highlights : New IPC

Quantitative
● Total of 20 new crimes have been added
● Imprisonment sentence has been increased for 33 crimes
● The amount of the fine has been increased in 83 crimes
● Mandatory minimum punishment has been introduced in 23 crimes.
● Penalty of community service has been introduced for six crime
● 19 sections have been repealed or removed
Gender
● Bharatiya Nyaya Sanhita has introduced a new chapter titled 'Crimes against
Women and Children' to deal with sexual crimes.
● Provisions related to the gang rape of a minor woman will become consistent
with the Protection of Children from Sexual Offences Act (POCSO).
● A provision has been made for life imprisonment or death penalty in the case of
girls below 18 years of age.
● There is the provision of 20 years imprisonment or life imprisonment in all cases
of gang rape.
● New crime category of gang rape of a woman under 18 years of age.
● Targeted penalties for persons fraudulently engaging in sexual intercourse or
promising to marry without true intention to marry.
Highlights : New IPC contd.
Anti State Activities
● Terrorism has been defined for the first time and it has been made a punishable
offence
● The new provisions include armed rebellion, subversive activities, separatist
activities or any act threatening the sovereignty or unity and integrity of India
● Small organised crimes have also been criminalized, punishable with
imprisonment of up to seven years
Highlights : New CrPC
Quantitative
● 531 sections (in place of 484 sections of CrPC)
● A total of 177 provisions have been changed in the bill
● Timelines have been added to 35 sections and audio-video provision has been
added at 35 places.

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● A total of 14 sections have been repealed and removed in the Sanhita.

Key Provisions
● Time limit for initiation of criminal proceedings, arrest, investigation, charge
sheet, proceedings before magistrate, cognizance, charges, plea bargaining,
appointment of Assistant Public Prosecutor, trial, bail, judgement and
punishment, and mercy petition.
UCC
Context
● Pre independence: British codified and made criminal laws uniform but not civil
laws: feared unrest & revolt.
● In line with the objective of keeping India divided: divide & rule
● Constituent assembly debates : Proponents; BR AMBEDKAR
● Compromise: DPSP Art 44 deferred taking a decision, allowed for future
legislatures to decide.
SECULARISM
● principle that advocates the separation of religion from politics and governance.
○ It seeks to establish a society where religious institutions and state
institutions are independent of each othe
○ Separation of religion from political, economic, social and cultural aspects
of life
○ Religion to be treated as a purely personal matter.
○ Indian Secularism is all about achieving the peaceful coexistence of
various religions
SECULARISATION
● process which leads to emergence of a secular state and society
● process of a decline in religious activities, beliefs, etc.
● Hindu Code bills, Hindu Marriage Act, Hindu Succession act
● Special Marriage Act, 1954
● Shah Bano Case
● Protection of women from Domestic Violence Act, 2005
● Juvenile Justice (Care and Protection of Children) Act, 2015
Constitutional Provisions
● Preamble : Added via 42nd CA, 1976
● FRs : Art 14, 15(1), 15(2), 16(1), 25-28, 29, 30

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● 51A
UCC
A Uniform Civil Code provides for one law for the entire country applicable to all
religious communities in their personal matters such as marriage, divorce, inheritance,
adoption etc
WHY?
SOCIAL
● Equality across religions
● Gender Justice: eradicate discriminatory practices related to Inheritance,
divorce, alimony (reducing patriarchal notions)
● Social justice: Child marriages
● Secularisation of the society: outward outlook, Religious identity < citizens
● Reinforce secular traditions: Religion will be considered a private sphere &
hopefully contain communalism
● Inculcate feelings of fraternity
● No infringement of Religious rights; Only intervention in those aspects of civil
matters that are in need for securing social Justice
POLITICAL AND LEGAL
● Upholding FR (14,19,21) vs 25-30
● Constitutional mandate: Art 44
● Strengthen Rule of law (supremacy, no multiplicity, all citizens governed by the
same laws)
● National integration: 1 common law across the length & breadth
● Reduce politicisation of religion (vote bank politics)
● Simplify laws by bringing in uniformity, therefore reduce litigation, speedy
disposal of cases and reduce the judiciary’s burden.
● GOA: Portugese introduced, successfully continues.
● Other countries; US, Egypt, turkey
WHY NOT?
● Against the concept of secularism: State’s Interference in religious & personal
matters.
● Infringement upon religious autonomy.
● Challenged as violation of FR of Religious freedom.

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● Can be viewed as an attempt to homogenise diversity and reduce cultural

plurality.
● Fear & Insecurity amongst the Minorities (cultural hegemony of the majority).
● Might in turn solidify religious identities and fuel communal tensions & social
unrest.
● LAW commission : UCC neither necessary, nor desirable- Differences reflects a
robust democracy. Only suggest reforms in existing family laws to tackle issues
like discrimination.
● Threat to Tribal Cultures : Tribal cultures and customary practices are distinctly
different from the mainstream.
● Critics argue the need for UCC when secular laws already exist: eg section 125
of CrPc.
● Constitution itself provided for existence of diversity;
● Personal laws in Concurrent list of Schedule 7.
● Article 350 rights of tribals to conserve languages, scripts and cultures.
● Art 371 A , special provisions to safeguard Naga customary law, religious and
social practices (no parliamentary act shall apply).

Challenges
● Reconcile Diversity of cultures and practices
● Forming consensus on common laws
● Challenge of FR violations (Art25
● Can be used as a pretext by external forces to create unrest in the country
● Alleviating the insecurities of the minorities
● Opposition by Religious groups
● Real secularisation of society: Eg continuance of patriarchal attitude
● Lack of political will or Forcible imposition (both can be interpreted as
appeasement)
HOW TO PROCEED
● Gradual approach : Dialogues, Negotiations, discussions
● Consent and consensus
● Sensitisation and secularisation
● Respect for Harmony in plurality

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● Alleviating the fear/insecurities of the minority and clarifying the extent of

intervention
● Only progressive intervention to achieve the objective of social Justice
UCC UK :
● Applicability: to all residents irrespective of their religious identity, except the
tribal community
● Uniform provisions: adoption rights, legal age of marriage, equal inheritance
rights for men & women
● Marriage & Divorce: compulsory registration & only dissolved by a court order.
Implications: Practices of Triple talaq and nikkah halala banned. Grounds of
divorce mentioned ; adultery, cruelty, desertion etc
● Prohibition of Polygamy
● Compulsory registration of live-in relationships. Women can claim maintenance if
deserted
● Inheritance: equal rights for Men & women,legal recognition of children born out
of live in relationships.

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IT Act & Rules

Introduction
● Designed to further empower the state and allow the executive considerable powers to
shape public discourses.
○ The state now demands access to all information about the content and origins of
every digital communication, a measure that will weaken the right to privacy
○ On the other hand, digital content is now subject to both self-regulation as well as
extensive surveillance and regulation designed to allow substantial control by the
executive over content.
○ Tehseen S. Poonawalla v/s Union of India (2018) : Supreme Court in 2018,
directed the government to curb and stop dissemination of explosive messages
and videos on various social media platforms which have a tendency to incite mob
violence and lynching of any kind.
● Digital 2023 Report
○ 692.0 million internet users in India at the start of 2023, when internet penetration
stood at 48.7 percent.

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○ India was home to 467.0 million social media users in January 2023, equating to
32.8 percent of the total population.
○ A total of 1.10 billion cellular mobile connections were active in India in early 2023,
with this figure equivalent to 77.0 percent of the total population.
Ethical Dilemmas
● How should we negotiate the desire to curb hate speech and to simultaneously ensure
freedom of expression?
● How can we build governance systems which are just, equitable, transparent, and do not
leave ordinary citizens at the mercy of both technology as well as the formidable powers
of the state?
● How do we protect the ordinary citizen from surveillance, even as we recognise that our
lives in the contemporary world are increasingly lived in the digital domain where we are
constantly generating and leaving data footprints in nebulous spaces?
● Does the only solution to curbing the immense power of multinational tech companies lie
in strengthening the powers of the state?

IT Rules, 2021
Replace the earlier 2011 Rules
● IT Act, an intermediary is not liable for the third-party information that it holds or
transmits; adhere to the due diligence requirements under the IT Act and the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
● Features
● Intermediaries
○ taking down content within 36 hours of receiving a court or government order
○ providing a grievance redressal mechanism for users and affected persons, and
designating a grievance officer
● Social media intermediaries (SMI) as intermediaries which primarily or solely enable
online interaction between two or more users.
○ Intermediaries with registered users above a notified threshold will be classified as
significant social media intermediaries (SSMIs)
○ Personnel: Residing in India
○ Identifying the first originator of information - Privacy & Tech Issue
○ Technology-based measures: Child sexual abuse, rape, info similar to ones
previously blocked (human oversight within free speech and privacy)

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○ User-centric requirements : grievance redressal

● Digital Media Publishers : three-tier structure for regulating these publishers: (i)
self-regulation by publishers, (ii) self-regulation by associations of publishers, and (iii)
oversight by the central government.
● Code of Ethics:
○ News and current affairs publishers : (i) norms of journalistic conduct by the PCI
(ii) Prog code under the Cable TV Networks Regulation Act, 1995.
○ Online Publishers : age-appropriate categories, sensitive & sensible content
● Grievance Redressal
● Ministry Oversight
● KL, Madras, BOM HC have stayed IT Rules
● Transfer petition pending in SC

● IT Rules, 2021 (Amendment in 2022) (SMIs + Grievance Process)

○ Inform - ensuring user compliance; reasonable efforts to prevent prohibited
content,
○ Respect FRs : 14,19, 21
○ Remove information pertaining to the prohibited categories within 72 hours
○ Ensure Access
○ Grievance Appellate Committee (GAC)
● IT Rules, 2021 (Amendment in 2022) (SMIs + Grievance Process) - Issues
○ Enhances the responsibility power of SMIs to police and moderate content
○ Translate to disparate duties on the SMIs
○ Obligate SMIs to provide services at a scale that they are not equipped to
○ Concurrent to courts; Composition bias
● IT Rules, 2021 (Amendment in 2023) (Online gaming and news related to Union
Government)
○ MEITY will notify a fact-checking body with the power to tag any information “in
respect of any business of the Central government” as “fake or false or
misleading”.
○ Intermediaries, which include social media platforms, e-commerce companies and
web-hosting services, will then be obligated to ensure that no user hosts, displays
or shares information that has been tagged as “fake” or “misleading”.

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○ According to the 2021 rules, if a court or the government notifies an intermediary

that this “fake news” is hosted on their platforms, they will have to then take it
down within 36 hours.
○ Gaming Intermediaries included - on betting games allowed - self regulated

The Right to Internet The Way Ahead

Context ● Freedom of speech and

● Manipur Internet Shutdown (2023) expression is the basic tenet of
: SC : Chongtham Victor Singh & any democracy. However, no
Anr v State of Manipur freedom is absolute or completely
● J&K Internet Shutdown : unrestricted.
Anuradha Bhasin v. Union of India ● The on-going tussle between
(2020) : a negative right to the private, tech giants who own a
internet subject to restrictions substantial amount of Big Data,
under Articles 19(2) and 19(6) has governments desirous of
been recognised. imposing reasonable restrictions
● K.S Puttaswamy v. Union of India : and users worried about issues
Proportionality Test relating to data privacy and
● Technology, is an enabler of rights constraints on freedom of speech
and not a right in and of itself. and expression, is likely to get
● Faheema Shirin v. State of Kerala more complicated before optimum
(2019) : Internet a part of daily life and solutions can be arrived at.
intersects with Art 21.
● Social Media companies blocking
someone's account can't be taken to
court as they do not come under
"State" as per Art 12

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Print & Press

Context

● Freedom of Press Index (2022)

● India : 161/180 (fell from 150 in 2022, consistently falling since 2016)
● No special rights for journalists though was debated in the CA
● News click Case
● Scope
● Freedom to spread information
● Romesh Thappar v. Madras (1950)
● Freedom to criticise
● Freedom to receive information
● Freedom to conduct interviews
● Sahara v. SEBI
● Contempt, Legal News Portals, Live Proceedings
● Freedom to attend and report legislative proceedings
● Art 361
● Freedom to act as an advertising platform
● Tata Press v. Mahanagar Telecom
● Freedom to broadcast

Jurisprudence

● Romesh Thappar vs The State Of Madras (1950)

● only narrow restrictions on freedom of expression were envisioned by the Constitution
● Sakal Papers (P) Ltd. v. The Union of India (1961)
● restrictions related to number of pages, price, advertisements, and circulation of
newspapers, constitute a direct infringement
● Bennett Coleman & Co. v. Union of India (1972)
● Quantitative restrictions that are not purely content-based can also affect freedom of the
press
● Indian Express Newspapers (Bombay) Private Ltd. v. Union of India
● excessive burden of taxation could not be placed on the media
● Manohar v. UoI (2021)

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● Pegasus - Pending
● Ranjit D. Udeshi v. State of Maharashtra (1964)
● criticized for applying the archaic Hicklin test to determine obscenity
● The Supreme Court of India has since rejected this test in Aveek Sarkar v. West Bengal.
(2004) (roth test)
● R. Rajagopal v. State of Tamil Nadu (1994)
● expands expression by prohibiting the state from engaging in a prior restraint on speech.
● Felix v. Gangadharan (2018)
● expands expression by recognizing that nudity, by itself, cannot be considered obscene
Significant role of Judiciary
● UK US Influence

DPSP
Why are they important?
● Framework for a Welfare State: The DPSP aim to establish India as a welfare state by
promoting social and economic democracy. They guide the state in formulating policies
that ensure the welfare of the people, focusing on justice, equality, and the elimination of
socio-economic disparities.
● Promotion of Social Justice: Many DPSP focus on achieving social justice by
baddressing inequalities based on caste, gender, and economic status. For instance,
Article 38 directs the state to minimise income inequalities, while Article 3emphasizes
equal pay for equal work and the right to an adequate means of livelihood. Article 44
talks about Uniform civil code etc.
● Economic Justice: The DPSP stress the importance of economic justice by advocating
for the equitable distribution of wealth and resources. This aims at preventing the
concentration of wealth in a few hands and ensuring a reasonable standard of living for
all citizens.
● Educational Opportunities: The DPSP underscore the importance of education. Article
45 mandates the state to provide free and compulsory education for children, reflecting a
commitment to literacy and knowledge as essential for individual and societal
development.
● Environmental Protection: Over time, environmental concerns have gained
prominence. Article 48A of the DPSP encourages the state to protect and improve the
environment, ensuring a balance between development and environmental sustainability.

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● International Peace and Security: Some DPSPs (Article 51) highlight the importance of
international peace and maintaining just and honorable relations between nations. This
reflects a commitment to global harmony and cooperation.
● Guidance for Legislation: Though not legally enforceable, the DPSP serve as a guide
for lawmakers. They provide a framework for the state while formulating laws and
policies, ensuring that these align with the broader objectives of the Constitution.
● Complementing Fundamental Rights: The DPSP complement the Fundamental Rights
enshrined in Part III of the Constitution. While Fundamental Rights are justiciable, the
DPSP outline the socio-economic goals the state should strive for, ensuring a
harmonious coexistence between individual rights and societal welfare.
● Judicial Influence: Despite being non-justiciable, the DPSP have influenced judicial
decisions. Courts often refer to these principles while interpreting laws, thereby
expanding the scope of socio-economic rights jurisprudence.

How Have DPSP Been Implemented?

Labor reforms:
a. The Minimum Wages Act (1948) and Code on Wages (2020) to ensure fair wages for workers.
b. The MaternityBenefit Act (1961) and Equal Remuneration Act (1976) to protect women workers'
interests.
c. The Child Labour (Prohibition and Regulation) Act (1986) to prevent exploitation of children.
·Environmental protection:
a. The Environmental (Protection) Act (1986)
b. The WildlifeProtection Act (1972)
c. The Forest(Conservation) Act (1980)
Social welfare:
a. Mahatma GandhiNational Rural Employment Guarantee Act (MGNREGA) to provide livelihood
security.
b. Integrated Rural Development Program(IRDP) and other schemes to raise living standards.
c. Ayushman Bharatto improve public health.
Education:
a. Article 21A was incorporated into the constitution via the 86th CA 2002, and to give effect to this
provision, Right to Education Act (2009) for free and compulsory education was brought by the
legislature.

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b. Scholarship programsfor weaker sections:As various policiessuch as Sukanya samriddhi Yojana

etc.
[Link] Education Policy(2020) focus on early childhood care and education
Local self-governance:
a. 73rd Constitutional Amendment Act (1992) to establish Panchayati Raj system
b. 74th Constitutional Amendment Act (1993) to establishurban local governance.
Protection of minorities and weaker sections:
a. Reservation policies in education and employment. (Article 15 (4), Article 16)
b. Establishment of National Commissions for SCs, STs, OBCs, etc.
c. EWS reservation.
Promotion of cottage industries:
a. Establishment of Khadi and Village Industries Commission, Handloom Board, etc

How to improve them?

● While DPSPs are non-justiciable, mechanisms could be developed to give them more
legal weight and enforceability. This could involve creating statutory bodies to monitor
implementation or allowing limited judicial review in cases of gross non-compliance.
● Some DPSPs provisions are considered conservative or outdated for the 21st century. A
comprehensive review could help modernise the principles to better reflect current
socio-economic realities and aspirations.
● Developing more concrete action plans, timelines, and measurable targets for
implementing DPSPs could enhance their effectiveness. This could involve better
coordination between central and state governments.
● Greater public education about DPSPs could create more demand for their
implementation and hold governments accountable.
● Ensuring adequate financial and human resources are allocated for DPSP
implementation, especially at the state level, is crucial for their realisation.
FD’s
● The true source of right is duty. If we all discharge our duties, rights will not be far to
seek. If leaving duties unperformed we run after rights, they will escape us like
will-o’-the-wisp, the more we pursue them, the farther they fly.” – Gandhi
● They were added to the Constitution by the 42nd AmendmentAct in 1976, based on
recommendations of the Swaran Singh Committee.
● Originally 10 duties were added, with an 11th duty added later in 2002.

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● They are not legally enforceable, but serve as moraland ethical guidelines for citizens.
● They aim to promote patriotism, national unity, environmental protection, scientific
temper, and other civic virtues. Examples include respecting national symbols, protecting
the environment, safeguarding public property, and striving for excellence
● Durga Dutt v Union of India : SC Case : Enforceability of FRs

Why are they important?

● They serve as a reminder of citizens' responsibilities: Fundamental duties remind citizens
that along with rights, they also have responsibilities towards their nation and fellow
citizens. They promote a sense of civic consciousness.
● They promote national unity and integrity: Many of the duties focus on respecting
national symbols, promoting harmony, and protecting the sovereignty and unity of India.
This helps foster patriotism and national integration.
● They encouragesocial responsibility: Duties like protecting the environment, safeguarding
public property, developing scientific temper, etc. promote socially responsible behaviour
among citizens.
● They help balance rights with responsibilities: While fundamental rights are crucial,
fundamental duties provide a counterbalance by emphasizing citizens' obligations. This
creates a more holistic framework of citizenship.
● They aid in constitutional interpretation: Courts can consider fundamental duties while
interpreting laws and determining their constitutional validity. Laws aligned with
fundamental duties may be viewed more favourably.
● They promote important values: The duties enshrine values like non-violence, respect for
women, preservation of cultural heritage,protection of environment etc. which are crucial
for societal progress.
● They serve as guiding principles: Even though not legally enforceable, fundamental
duties act as moral and ethical guidelines for citizen behaviour.
FDs
How Have FDs Been Implemented?
Legislative Measures: Certain laws have been enacted to implement specific Fundamental Duties.
For example:
a. Environmental protection laws align with the duty to protect and improve the natural
environment.

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b. The Prevention of Insults to National HonourAct, 1971, enforcesrespect for the National Flag
and the National Anthem.
Judicial Pronouncements: The Supreme Court of India has emphasized the importance of
Fundamental Duties in several judgments.
a. In the AIIMS Students Union v. AIIMS (2001) case, the Court held that Fundamental Duties are
as important as Fundamental Rights.
b. Similarly, in the Ranganath Mishra vs. Union of India (2003) case, the Court suggested that
Fundamental Duties should be upheld through both legal and social sanctions.
Educational Initiatives:
a. The Justice J.S. Verma Committee, constituted in 1999, recommended the inclusion of
Fundamental Duties in educational curricula to promote awareness among citizens. The
Supreme Court has also directed the government to implement these recommendations.
Judgments
Javed v. State of Haryana (2003): The Supreme Court held that fundamental rights have to be
read with fundamental duties and the Directive Principles of State Policy, and they cannot be
read in isolation.
Minerva Mills Ltd. v. Union of India (1980): Merely because a rule is not backed by sanctions for
disobedience does not mean it has no importance. It is still regarded as a rule of law that is
expected to be followed.
Vellore Citizens’ Welfare Forum v. Union of India & Bandkhal and Surajkund Lakes: The
Supreme Court recognized ‘the Precautionary Principle,’ ‘the Polluter Pays’ principle as
essential features of “sustainable development” and part of environmental law of the country in
view of Articles 21 and 51-A(g).
M.C. Mehta v. Union of India: The Supreme Court made it compulsory for all educational institutes
to organize a one-hour lecture on protecting and preserving the natural environment and made
the Central Government duty-bound to make this a rule in all such institutes and make it a part
of their curriculum and issued certain directions in general to the Central Government and
citizens on maintaining a healthy ecology and preserving the natural environment.
FDs
How to improve them?
Education and Awareness:
● Curriculum Integration: Incorporate the teaching of fundamental duties into school and
college curricula to instil these values from a young age. Educational reforms should

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emphasize civic education and the importance of these duties in maintaining a

democratic society.
● Public Campaigns: Launch nationwide awareness campaigns to educate citizens about
their fundamental duties. Utilise media, social platforms, and community programs to
spread awareness and encourage compliance.
Civic Engagement and Participation:
● Community Programs: Develop community-based programs that encourage citizens to
actively participate in fulfilling their fundamental duties. This could include community
clean-up drives, cultural preservation activities, and workshops on scientific temper and
inquiry.
● Incentive Schemes:Introduce incentive schemes for citizens and organizations that
actively promote and fulfil fundamental duties. Recognitions, awards, and tax benefits
could motivate more people to engage in these activities.
Institutional Support:
● Government Initiatives: Establish dedicated bodies or committees at various levels of
government to monitor and promote the observance of fundamental duties. These bodies
can also address grievances related to the neglect of these duties.
● Corporate Responsibility: Encourage corporate entities to incorporate fundamental
duties into their corporate social responsibility (CSR) initiatives. This could include
environmental conservation projects, educational programs, and efforts to promote social
harmony.
Policy Reforms:
● Inclusion of Additional Duties: Consider expanding the list of fundamental duties to
include responsibilities such as voting, paying taxes, and family planning, as
recommended by various committees.
● Policy Alignment: Ensure that government policies and programs are aligned with the
principles of fundamental duties. This alignment can help create a supportive
environment for citizens to fulfil their obligations.
FDs
Case Studies
● Countries like Tunisia, China have provisions of Duty to pay taxes.
● India can also look at U.S.A’s “Constitution Week,” using the time to reflect on citizens'
rights and responsibilities.

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● Like Singapore, emphasizing on the relentless pursuit of duties of citizens can transform
India into a highly developed nation.
● Possible Additions
● Duty to vote
● Duty to pay taxes (Vodafone case)
● Duty to help accident victims (Good Samaritan Law)
● Duty to keep premises clean (SBM)
● Duty to raise voice against injustice (POSCO)
● Duty to support bona fide civil society movements

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Part I : Polity & Governance

Theme 3 : Union & State Executive

PYQ analysis

WHEN? WHAT? WHY?

2014 Instances of President’s delay in 15 death penalties commuted due

commuting death sentences has come to delay in communicating Mercy
under public debate as denial of justice. Petition outcomes
Should there be a time limit specified for
the President to accept/reject such
petitions? Analyse.

2014 The size of the cabinet should be as big as Strength from 79 to 46 in UPA II
governmental work justifies and as big as and NDA I respectively
the Prime Minister can manage as a team.
How far the efficacy of a government then
is inversely related to the size of the
cabinet? Discuss.

2015 Resorting to ordinances has always raised FDI in insurance, auction of coal
concern on violation of the spirit of blocks, E-rickshaws, mines and
separation of powers doctrine. While minerals and amendment to
noting the rationales justifying the power to Citizenship Act by merging the
promulgate ordinances, analyze whether status of OCI and PIO Cardse
the decisions of the Supreme Court on the rickshaws. Land Ordinance 2015
issue have further facilitated resorting to questioned in SC, 9 Ordinances
this power. Should the power to issued in 2015 itself.
promulgate ordinances be repealed?

2018 Under what circumstances can the TN & UK acute financial health,
Financial Emergency be proclaimed by the RBI v. Govt, High NPA, GST, IBC
President of India? What consequences
follow when such a declaration remains in
force?

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WHEN? WHAT? WHY?

2019 “The Attorney-General is the chief legal adviser and Sabrimala Quotes,
lawyer of the Government of India.” Discuss. Rafeale

2022 Discuss the role of the Vice –President of India as Newly elected VP
the chairman of the Rajyasabha

2022 Discuss the essential conditions for exercise of the PRS Report on
legislative powers by the Governor. Discuss the Ordinances, 5 years of
legality of re-promulgation of ordinances by the Krishna Kumar Singh SC
Governor without placing them before the judgement
Legislature.

2022 Critically examine the procedures through which the New Presidents of India
Presidents of India and France are elected and France

FR Mains 2024 Analysis

Factors Outcomes

1. Transient Issues - Floating CA 1. Ordinances

a) AG 2. Governor’s Duality
b) Financial Emergency 3. HoE - CoM Relationship ;
2. Electoral Cycles Collective Responsibility
a) Ministers
3. Ordinance Impact Analysis
4. New Appointments
5. Anniversaries of judgements
6. Anniversaries of imp. constitutional
amendments

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Ordinances

Possible Questions?

1. What are Ordinances? [Def + Legal Provisions]

2. Why are they provided for? [Rationale]
3. Are Ordinances common internationally? [Comparative Constitution]
4. How frequently are they used? [Data]
5. Why do they happen?
6. What are the issues with Ordinances?
a. Miscalculation of urgency
b. Execessive Repromulagation
c. Judicial Review
d. Effect post lapse
7. On what grounds can Ordinances be challenged?
8. What is the impact of Ordinances?
I. Parliamentary Democracy
II. Separation of Powers
III. Federalism
IV. Judicial Review

9. What is the cost benefit analysis of Ordinances?

What are Ordinances?

● Ordinances are temporary laws directly promulgated by the President or Governor if
they are satisfied under Art 123 and 213 respectively to cater to an urgent scenario.
● Can only be passed when either of the houses are not in session
● Can be issued only on the respective ordinary legislative powers of Parliament and
State Legislatures
● Constitutional Amendments cannot be Ordinances
● Have to passed within the first 6 weeks of the house coming back to session
● Max Tenure = 6 months and 6 Weeks = 30 weeks Ordinarily
● Can be Judicially Reviewed [Art 13(2) and Legislative Competence]
● President/Governor can respectively return or reject the Central or State Ordinances
● Governor can’t promulgate on Ordinance on something which should or could have
been reserved for the President

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2. Why are they provided for?

● Enabling the executive to meet any unforeseen or urgent situation arising in the
country when Parliament is not in session, and which it cannot deal with under the
ordinary law
● We do not have all year round functioning legislatures
● The duration of an ordinance was highly criticised in the constituent assembly
debates

3. What is the International Scenario?

● There are only three parliamentary democracies in the world that permit the
ordinance route — India, Pakistan and Bangladesh.
● The practice in India was adopted from the Government of India Act, 1935.

4. How frequent are Ordinances?

● Every Central Government has promulgated Ordinances during their tenure
● Political Instability proportional to Higher Ordinances
● 2024 - none so far, 2023 - 1, 2022 - 0, 2021 - 11, 2020 - 15, 2019 - 16....
● 2010-2019 - 76
● 1990-1999 - 196
● 34 Central Ordinances in 1993
● 1970-1979 - 133
● 29 Central Ordinances in 1975
● Only 42 Central Ordinances have been reissued
● States have higher re-promulgations : KL (140/144 Ordinances in 2021 reissued)

5. Why do they happen?

● Reluctance to face the legislature on particular issues
● Fear of defeat in the Upper House where the government may lack the required
numbers.
● The need to overcome standoff in the legislature caused by repeated and wilful
disruption by a section of the Opposition
● Political Instability

6. What are the issues with Ordinances?

Urgency Misplaced :

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● A.K. Roy v. Union of India (1982) : Ordinance should not be used as a substitute for
parliamentary legislation and should be resorted to only in cases of extreme urgency
or unforeseen emergency.
● Excessive Re-promulgation
● DC Wadhwa vs. State of Bihar Case (1987) : Excessive re-promugation is a fraud
upon the Constitution, and violates the democratic process of law making
● Krishna Kumar Singh v. State of Bihar (2017) : Ordinances must be placed before
the legislatures under all circumstances
● Judicial Review - Pres/Gov Satisfaction
● R.C. Cooper v. Union of India (1970) : President's satisfaction in promulgating an
Ordinance could be questioned on the grounds of it being malafide or that the
decision was based on wholly extraneous and irrelevant grounds.
● S.R. Bommai v. Union of India (1994) : Judicial review of the President's
satisfaction for issuing an Ordinance is permissible in cases of mala fides, arbitrary or
irrational exercise of power. Even the material on the basis of urgency was urgency
can be looked into.
● Impact post Lapse
● Krishna Kumar Singh v. State of Bihar (2017) : Public Interest, Constitutional
Necessity, and Irreversibility

7. On what grounds can Ordinances be challenged

● Colourable Legislation : DC Wadhwa vs. State of Bihar Case (1987)
● Violation of Fundamental Rights : A.K. Roy v. Union of India (1982)
● Substantive Provisions such as Art 301 : R.C. Cooper v. Union of India (1970)
● Retroactivity is unconstitutional : Sat Pal & Co. v. Lt. Gov. Delhi (1979)

8. What is the impact of Ordinances on :

● Parliamentary Democracy : Undermined due to
● Excessive re-promulgation
● Bypassing the legislatures
● Separation of Powers : Diluted due to to
● Executive substituting itself as lawmakers
● Federalism : Compromised due to
● Constitutionally, Governor is not always bound by CoM, she may act in central
interest
● Judicial Review

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● Heightened as the Courts can enquire into the material which is the basis of
satisfaction as well as malafide intentions

9. What is the cost benefit analysis of Ordinances

Examples :
● Criminal Law (Amendment) Ordinance, 2018 which, among other things, amended
the Indian Penal Code (IPC), 1860, allowing the imposition of the death penalty on
those convicted of sexual assault of a minor girl below the age of 12 years (Kathua
Rape Case)
● Fugitive Economic Offenders Ordinance, 2018, which allowed the seizure of assets
of those accused of certain economic offences, if they fled the country prior to trial.
(Mallaya, Nirav Modi)
● Changes to Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015 (henceforth Commercial Courts Act) were made
through an ordinance. These amendments allow for the setting up of commercial
courts to hear disputes with a value of as little as ₹3 lakh (as opposed to the earlier
limit of ₹1 crore), and require parties to have attempted mediation prior to the
institution of a suit in a commercial dispute. (EoDB Rankings)
● Farm Law Ordinances, 2020
● Delhi Govt Ordinance, 2023
● The Homoeopathy Central Council (Amendment) Ordinance, 2021
● Although free and fair elections continue to be held at regular intervals at the union
and state levels, the true health of India’s democracy can be gauged by what
happens in between such elections. In a democratic system, popular elections only
dictate who may govern in accordance with the norms and practices of the
Constitution. They cannot be and can never be, considered to be carte blanche for
showing contempt towards democratic practices and institutions that are necessary
to create and maintain a healthy democracy.

Governors

Possible Questions?

● Why are Governors in news?

● Why do we have Governors?
● What are the primary constitutional provisions pertaining to Governors?
● What discretions do the Governors have?
● What is the jurisprudence on the Governor’s role and office?
● How can the Governor’s Office be improved?

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Why are Governors in News?

● Kerala and Tamil Nadu governments have petitioned the SC over delay of the
Governor in assenting to Bills
● West Bengal Governor and leadership in a crisis of conflict including but not limited to
○ Appointment of Vice Chancellors
○ Assenting to Bills
● Governor’s actions in Karnataka and Maharastra pertaining to electoral forwards
were deeply questioned
2. Why do we have Governors?
● Dual Role : Key figure in the Indian federal setup
● Head of Executive for the states
● Eyes and ears of the Center
● The office of the Governor has two facets, namely
○ the occupant and
○ the powers vested in them.
● Hence, a wide range of discretionary powers
● Historically, Mauryan Empire as well as Mughals had a similar office.
● GoI Act 1935 is the primary source
● KT Shah criticised the nature of the post then, observing that the Governor by virtue
of the 1935 Act was more than a constitutional figurehead
● Constituent Assembly member H.V. Kamath - “it appears that the Government of
India Act of 1935 has been copied more or less blindly without mature
consideration”
3. What are the primary constitutional provisions pertaining to the Governor?
Article 154(1) : the executive power of the state is vested with the Governor
Article 155 : the President appoints the Governor
Convention to consult the Chief Minister
Articles 155 demonstrates the unbridled power vested in the Centre vis- à-vis the state in a
Governor’s appointment as the President is very unlikely to turn down the Centre’s choice
Article 156 (1) : Governor serves at the “pleasure” of the President
Since Article 156 (1) allows the President to remove Governors without any procedural
qualification, there is no stability in the tenure
Article 157 : any person who is a citizen of India and is above 35 years of age is eligible to
hold the office

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Under Article 157, any person irrespective of their political or professional background
above the age of 35 can be appointed, including those ill-suited to perform the tasks that
the post requires.
Most Governors appointed now are usually known allies of the political party in power
Article 163(1) : there shall be a council of ministers headed by a Chief Minister to aid and
advice the Governor in the exercise of his functions unless she is constitutionally required to
act in her discretion
Art 163(3) : Advice rendered by CoM to Governor is not judicially reviewable
Art 164 : The Ministers other than the CM serve at the pleasure of the Governor.
Art 361 : Absolute immunity from civil and criminal proceedings for acts done in
performance of Governor’s Duties

4. What discretions do Governors have?

● Unlike the President, the Governor is not constitutionally bound to act on the aid and
advice of the Council of Ministers, but wherever possible, she must. Also, Governor
decides on whether a matter is under the ambit of discretion or not. Governor’s
largely have the following types of discretion :
○ Constitutional
○ Situational
○ Implied
● the selection of a Chief Minister prior to the formation of a Council of Ministers
● dismissal of a Ministry
● dissolution of the Legislative Assembly
● asking the Chief Minister for information relating to legislative and administrative
matters
● asking the Chief Minister to submit for the consideration of the Council of Ministers
any matter on which a decision has been taken by a Minister but which has not been
considered by the Council
● refusing to give assent to a Bill passed by the Legislature and sending it hack for
reconsideration
● reserving a Bill passed by the State Legislature for the assent of the President [Art
200]
● seeking instructions from the President before promulgating an Ordinance dealing
with certain matters
● advising the President on the proclamation of an emergency [Art 356]

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● in the case of the Governor of Assam, deciding certain administrative matters

connected with the tribal areas and settling disputes between the Government of
Assam and the District Council (of an autonomous district) with respect to mining
royalties.

5. What is the jurisprudence on the Governor’s role and office?

● State of Punjab v Principal Secretary to the Governor of Punjab and Anr (2023)
: The governor, who is chosen by the President, only acts as a symbolic head and
cannot indefinitely withhold action on bills.
● Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh
Legislative Assembly (2017) : Governor could not independently convene the
legislative assembly, dictate its legislative agenda, or address the assembly without
prior consultation.
● Harish Rawat v. Union of India (2016) : The Supreme Court mandated a floor test
in the state assembly, highlighting the significance of upholding the principles of
parliamentary democracy and the imperative to safeguard it.
● Rameshwar Prasad v. Union of India (2006) : The court elucidated the restricted
scope of the Governor's discretion in approving or withholding bills. The Court
emphasised that the Governor's actions and the President's decision to dissolve the
Assembly are subject to judicial review. The judgement reinforced the principle that
the President must act on the aid and advice of the Council of Ministers and that the
Governor's recommendations must be based on objective material.
● Shiv Sena v. Union of India (1994) : The court affirmed that the Governor should
exercise discretion judiciously, considering the political realities and constitutional
principles while inviting a party to form government.
● Ram Jawaya Kapoor v. State of Punjab (1955) : Held that the executive can
exercise powers even without specific legislation, as long as it does not contravene
existing laws.
● S.R. Bommai v. Union of India (1994) : The Governor's report for recommending
President's Rule can be judicially reviewed. The Governor should give the state
government a chance to prove its majority on the floor of the house before
recommending dismissal.
● Shamsher Singh v. State of Punjab (1974) : The personal satisfaction of the
Governor is not required for executive actions taken in his name.

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● M.P. Special Police Establishment v. State of M.P. (2004) : Clarified that the
Governor can act in his discretion, against the aid and advice of the Council of
Ministers, in granting sanction for prosecution of ministers for corruption.

6. How can the Governor’s Office be improved?

● In 1979, a constitution bench of the Supreme Court ruled that governors are not
“subordinate or subservient to the Government of India” and that the post is an
independent constitutional office, “which is not subject to the control of the
Government of India”.
● First Administrative Reforms Commission : states must be consulted in the
appointment process
● Sarkaria Commission : the appointee ought to be
○ eminent in some walk of life;
○ a person who is not domiciled in the state of appointment
○ detached from the local politics
● M.M. Punchhi Commission
○ the Governor must not have participated in active politics for at least 2 years
before appointment, it is suggested that the prerequisite be extended to 10
years
○ The eminent person doctrine is criticised by those who argue that it would
create a sycophantic intelligentsia who genuflect to the demands of the
government of the day
○ To overcome this issue, it is suggested that a five- member panel comprising
the Prime Minister, the Speaker of the Lok Sabha, the Leader of Opposition
in the Lok Sabha, the concerned State Chief Minister, and the Leader of
Opposition in the concerned state assembly be constituted to facilitate
bipartisan appointments (appointment must include appointments by virtue
of transfers and additional charge)
● Provision be made to allow the state legislature to impeach the Governor, based on
a two-thirds majority, on specific grounds of misfeasance instead of leaving any
misdemeanour on the occupant’s part to be decided as to whether it brings
displeasure to the President.
● The practice ‘Governors changing with governments’ will not sustain in case their
removal entails impeachment by the state legislature.

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Governors must act as benevolent representatives honouring the constitutional duty vested
upon them rather than as imperial hegemons furthering the exigencies of a partisan Centre.
Just like there are examples of mala fide behaviour by governors, there are, equally,
examples of governors acting on public interest and constitutionality against mala fide
actions of the state executive. Governors should be a ‘link’ and not an ‘agent’ of the
centre’.

DOCTRINE OF ‘COLLECTIVE RESPONSIBILITY’

Collective responsibility is a fundamental convention of the common law, whereby the
Government is collectively accountable to Parliament for its actions, decisions and
policies. Ministerial responsibility is fundamental to the parliamentary system as it
guarantees
the government’s answerability to the legislature and, consequently, to the population.
Ministers have both a collective and an individual responsibility to the parliament. This
is the bedrock principle of parliamentary form of government.
Article 75 (3) of the Indian Constitution, contextualises this principle to a certain extent. It
enumerates that that the Council of Ministers is collectively responsible to the Lok Sabha,
i.e., all the ministers own joint responsibility to the Lok Sabha for all their acts of omission
and
commission. The principle of collective responsibility also means that the Cabinet decisions
bind all cabinet ministers (and other ministers) even if they differed in the cabinet meeting. It
is the duty of every minister to stand by cabinet decisions and support them both
within and outside the Parliament (R.K. Jain v UOI, 1993). Several ministers have
resigned in the
past owing to their differences with the cabinet. For e.g., Dr. B.R. Ambedkar had resigned
because of his differences with his colleagues on the Hindu Code Bill in 1953.
In Common Cause v Union of India (2018), The Supreme Court had held that the principle
of
‘collective responsibility’ has two meanings: -
1. That all the members of a government are unanimous in support of policy.
2. The ministers are collectively responsible for the success and failures of the policies.
In S.P. Anand v H.D. Deve Gowda (1996), The Supreme Court held that: the principle of
collective responsibility means all the ministers are collectively responsible for every decision
taken whether their assent is present or not. It means their decisions must have unanimity
and
confidentially.
Recently, this principle was in news, as a Minister of the State of Uttar Pradesh, Azam Khan,

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had trivialised an alleged rape incident by dismissing the incident as a ‘political conspiracy
and nothing else’.
Similarly, in a recent judgement of the Supreme Court, The majority of the five judges ruled
that a statement made by a minister even if traceable to any affairs of the state or for
protection of the government cannot be attributed vicariously to the government by
invoking the principle of collective responsibility. The court held that the flow of stream
in collective responsibility is from the Council of Ministers to the individual Ministers.
The flow is not on the reverse, namely, from the individual Ministers to the Council of
Ministers.

Implications of collective responsibility on ministerial autonomy and policy-making

1. Limited individual dissent: Ministers are expected to publicly support Cabinet
decisions, even if they personally disagree. This restricts their ability to voice individual
policy preferences that differ from the collective stance.
2. Constrained policy advocacy: Ministers have limited autonomy to advocate for
policies that diverge significantly from the government's agreed position, as this could
be seen as breaking collective responsibility.
3. Pressure for consensus: There is pressure within Cabinet to reach consensus on policy
decisions, which may lead ministers to compromise on their preferred policy positions.
4. Resignation as the main recourse: If a minister strongly disagrees with a Cabinet
decision, their main option is to resign rather than publicly criticize the policy. This
limits their ability to shape policy from within government if they fundamentally
disagree.
5. Emphasis on private persuasion: Ministers must focus on persuading colleagues
privately within Cabinet rather than building public support for their individual policy
preferences.
6. Reduced transparency: The confidentiality aspect of collective responsibility limits
ministers' ability to publicly explain the rationale behind specific policy choices or their
personal views.
7. Prime ministerial influence: The Prime Minister's power to dismiss ministers who
break collective responsibility gives them significant influence over individual
ministers' policy autonomy.
8. Team-based approach: Ministers are expected to work as part of a team rather than
pursuing individual policy agendas, which can constrain autonomy but also foster
collaboration.
9. Accountability trade-offs: While collective responsibility ensures the whole Cabinet
is accountable, it can make it harder to hold individual ministers accountable for

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specific policy decisions.

10. Policy consistency: The doctrine helps maintain policy consistency across
government, but at the expense of ministerial autonomy to adjust policies within their
portfolios.

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Part I : Polity & Governance

Theme 4: Union & State Legislatures

Anti Defection Law

Possible Questions?

1. What is Anti Defection Law?

2. Why was it enacted?
3. Do other countries have something similar?
4. What are important provisions, issues, jurisprudence, and solutions to the
issues?
5. What is the impact of the law on -
6. Role of parliamentarian
7. Parliament/Legislatures
8. Voters
9. Should we even have such a law? If yes, in what form?

What is the Anti Defection Law?

• A set of provisions prohibiting changing of political parties or actions against
party interests to curb political opportunism, violation of which can led to the
disqualification of all parliamentarians/legislators.
• Inserted as the Xth Schedule via the 52nd Constitutional Amendment, 1985.
• Instrumental changes were made via 91st CA 2003.
• Its usage has led to stifling of dissent and a diminished role of an individual
parliamentarian yet has not been able to contain political defections
effectively.

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Part I : Polity & Governance

Theme 4 : Union & State Legislatures

Lecture: 4.3

Office of Profit

Possible Questions?

1. What is the concept of Office of Profit?

2. What is the rationale behind it?
3. What are the essentials and tests of Office of Profit?
4. How can we make Office of Profit better?

1. What is Office of Profit ?

● Disqualification criteria for MPs and MLAs exercised by the Pres/Gov on binding
advice of ECI.
● An office of profit has been interpreted to be a position that brings to the office-holder
some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
● Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP
or an MLA (or an MLC) is barred from holding any office of profit under the central or
state government unless they are also Ministers.
● Provisions of Articles 102 and 191 also protect a legislator occupying a government
position if the office in question has been made immune to disqualification by law.
There is no bar on how many offices can be exempted from the purview of the law.
○ In the recent past, several state legislatures have enacted laws exempting
certain offices from the purview of office of profit. Parliament has also enacted
the Parliament (Prevention of Disqualification) Act, 1959, which has been
amended several times to expand the exempted list.
● In 2018, on ECI recommendation, President disqualified 20 MLAs of the Delhi
Legislative Assembly last month for holding an ‘office of profit’ in form of
Parliamentary Secretaries to to various ministries in the Delhi government.
● Reports of parliamentary secretaries being appointed in 20 states in the past with
court judgments striking down these appointments in several cases.

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● The law does not clearly define what constitutes an office of profit but the definition
has evolved over the years with interpretations made in various court judgments.
● Joint Committee on Offices of Profit is a Standing Committee of Parliament whose
mandate is to examine the offices which should be granted exemption from
disqualification under the Parliament (Prevention of Disqualification) Act.

2. What is the rationale behind it?

separation of power between the legislature and the executive
prevention of possibility of a conflict between duty and interest of an individual who is
required to perform the role of both a legislator and a member of the executive.

Essentials
● Three Essential Elements: S. Umrao Singh v. Darbara Singh (1968)
○ the individual holds an office
○ it is an office of profit
○ it is under the Government of India or a State
● Nature of Control : Ashok Kumar Bhattacharya v. Ajoy Biswas (1985) ; Dobrey
v. Dobrey (1984)
○ The extent of government control over the office plays a pivotal role
● Pecuniary Advantage : Hedge v. State of Karnataka (1993)
○ While an element of profit is necessary, mere prestige or advantages
are insufficient.
● Regularity of Income : Hotilal v. Bahadur (1958)
○ An office need not have a regular income
● Sui Juris: Ghulam Chand v. Thakur Singh (1953)
○ The holder of the office must be sui juris, meaning legally capable of
holding the office
● Tests : Swapan Roy v. Pradyut Bordoloi (2001)
● Government Appointment: Guru Govinda Basu v. Shankari; Prasad Ghosal &
Ors (1964)
○ The government must have the power to appoint and remove the
holder of the office
● Government Payment:
○ The government should be responsible for paying remuneration
attached to the office
● Government Control:

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○ The government should exercise control over the performance of the

functions associated with the office.
● Conflict of Interest:
○ The presence of a conflict of interest is a crucial factor in determining
whether an office falls within the ambit of an "Office of Profit."

4. How can we make Office of Profit better?

Second ARC Recommendations :

Offices in purely advisory bodies should not be treated as offices of profit,
irrespective of any remuneration attached with the office.
Offices whose holder has executive decision-making power and control over public
funds should be treated as offices of profit. The executive decision-making power
may include deciding policy, managing or approving expenditure etc.
If the office-holder is the Head or Member of such organisation where close
coordination between the Council of Ministers and the organisation is essential for
functioning of the Government, the office should not be treated as an office of profit.

“It has also been held by the Supreme Court that all the determinative factors need
not be conjointly present. The critical circumstances, not the total factors, prove
decisive. A practical view, not pedantic basket of tests, should guide in arriving at a
sensible conclusion “ Prof. Achary, Practice and Procedure of Parliament.

Delegated Legislation

Possible Questions?
1. What is it?
2. Factors causing its usage?
3. Classification?
4. Functions that can be delegated?
5. Functions that can’t be delegated?
6. Principles of Delegated Legislation
7. Parliamentary Control
8. Judicial Control
9. Examples
10. Criticism
11. Closing Remarks - Necessary Evil?

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Delegated Legislation/Subordinate Legislation/Executive Rule Making

● It is sometimes said that Parliament makes the laws. It is true that Parliament
makes the laws if by this we mean that Parliament has an essential role in the
creation of Acts; but looking at the whole legislative process, it would perhaps be
more realistic to say that the government makes the laws subject to prior
Parliamentary consent. - Griffith J

● According to M.P. Jain, “ the term is used in two different sense

○ to exercise the legislative power by subordinate agents
○ the subsidiary rules themselves which are made by the subordinate authority
in pursuance of the powers conferred on it by the legislature.
● Delegated legislation may be in the form of rules, regulations, bye-laws,
notifications, schemes, orders, ordinances, directions, etc
● Countries such as UK, USA, Australia, and Canada have overarching legislation for
regulating the framing of subordinate legislation.

● Factors responsible for the rapid growth of Delegated Legislation [As per Committee
on Ministers’ Powers, UK]
○ Pressure upon Parliamentary time
○ Technicality
○ Flexibility
○ Experiment
○ Emergency
○ Complexity of modern administration
○ Better understanding of ground realities

● Types of DL
○ Discretion-based
○ Purpose-based
○ Authority-based classification
● The legislative cannot delegate all its powers and functions to administrative
authorities.
○ Various SC Judgements such as In Re; Delhi Laws Act (1952), Lachmi Narain
v. Union of India (1976) etc.. have laid down some guidelines

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● Functions that can be delegated :

○ Commencement of Statute
○ Supplying the details
○ Inclusion
○ Exclusion
○ Suspension
○ Application of existing Laws
○ Prescribing punishments
○ Framing of Rules

● Functions that can’t be delegated :

○ Essential Legislative functions
○ Repeal of Law
○ Exemption
○ Removal of difficulties
○ Retrospective operation
○ Future Acts
○ Imposition of Tax
○ Ouster of jurisdiction of courts
○ Offences and Penalty

Controls & Safeguards :

● “Today the question is not whether delegated legislation is desirable or not, but it is
what controls and safeguards can be introduced so that the power conferred is not
misused or misapplied.” - Committee on Subordinate Legislation
● From various judgments of the Supreme Court, the following general principles
regarding delegated legislation emerge and these principles apply to all forms of
delegated legislation; such as conditional legislation, subordinate legislation,
supplementary legislation, sub-delegation, etc.
○ The Constitution confers a power and imposes a duty on the legislature to
make laws and the said function cannot be delegated by the legislature to
the executive or even to any administrative agency. It can neither create a
parallel legislature nor destroy its legislative power.
○ The legislature must retain in its own hands the essential legislative function.
The essential legislative function consists of the determination of the
legislative policy and its formulation as a binding rule of conduct.

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○ Once the legislature lays down the policy it can delegate to the executive
authority ancillary and subordinate powers necessary for carrying out the
policy and purpose of the Act as may be necessary to make the legislation
effective, useful and complete
○ The legislative policy may be reflected in as few or as many words as the
legislature thinks fit. It may be express or implied. It may be gathered from the
history, Preamble, title, scheme, statement of objects and reasons, etc
○ The authority to which delegation is made is also one of the factors to the
considered in determining the validity of such delegation. However, delegation
cannot be upheld merely on the basis of status, character or dignity of the
delegate
○ Safeguards against the abuse of delegated power including power to repeal
do not make delegation valid if otherwise it is excessive, impermissible or
unwarranted
○ The delegated legislation must be consistent with the parent Act and cannot
travel beyond the legislative policy and standard laid down by the legislature.
○ It is for the court to hold on a fade, generous and liberal construction of and
impugned statute whether the legislature has exceeded limits of permissible
delegation. It is, however, the duty of the court to strike down without
hesitation any arbitrary power conferred on the executive by the legislature.

Parliamentary Control
● Pre-enactment control
○ In India, there is no such statutory requirement, and given the level of quality
of debates in parliament, pre enactment control of delegated legislation
cannot be expected to serve any useful purpose.
● Post – enactment control
● Laying on the table (Placing before Parliament) - Not very effective
○ Debate on the Act : At the time of passing the Act, Members of Parliament
(MPs) may debate the provisions relating to delegated legislation. The
relevant departmentally related standing committee while examining the Bill
may also make recommendations regarding the scope of delegated
legislation. For instance, while looking at the Companies Bill, 2009, the
Standing Committee on Finance observed that there was excessive
delegation in the Bill as certain substantive provisions had been delegated to
the rules. The Committee recommended some of the important provisions
should be incorporated in the main Bill

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○ Statutory Motion : After the rules have been tabled, MPs may move a
statutory motion seeking an annulment or modification of the rules.
○ Question Hour : This method has not been exercised frequently. For example,
between December 2011 and August 2012, two questions were asked in the
Rajya Sabha on the provision relating to the Civil Liability for Nuclear Damage
Rules, 2011

Parliamentary Control
● Post – enactment control
○ Scrutiny Committees
■ Lok Sabha committee on subordinate Legislation and the
Rajya Sabha committee on subordinate Legislation. Both the
committees consist of 15 members each. Similar committees
have also been set up at the state level.
■ These committees cannot consider the question of policy or
the merit of the rules made by the delegate
● Scope
■ Whether the rules are intra vires the Constitution of India and
the parent Act.
■ Whether the rules contain any matter which, in the opinion of
the committee, ought to have been dealt with by the legislature
itself.
■ Whether such rules bar the jurisdiction of the courts, directly or
indirectly.
■ Whether there appears to have been any unjustified delay
either in publication of the rules or in laying them before the
legislature.
■ Whether, for any reason the form or purpose of the rules calls
for further elucidation or explanation.
● Recommendations of the Committee on Subordinate Legislation
■ No tax should be allowed to be imposed by rules, regulations,
etc.
■ The language of the rules should be simple and clear. All
ambiguities are strictly to be avoided.
■ Rules should not be given a retrospective effect – unless such
a power is clearly spelt out in the parent Act.
■ Discriminatory rules should not be made by the executive.

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■ Rules made by the executive should not go beyond the rule-

making power conferred on it by the parent act.
■ Rules should be framed by the executive as soon as possible,
and in any case, within six months from the date of
commencement of the parent Act.
● Violated in the Waqf Act where it took 2.5 years.

Judicial Control
● to ensure the consistency with the provisions of the Constitution.
● to enforce the compliance with statutory provisions and limitations.
● Grounds of challenge
○ Substantive Ultra Vires
■ That it is ultra vires the statute, or in opposition to the policy
and purposes of the statute.
■ That it contravenes any of the constitutional limitation.
○ Procedural Ultra Vires
■ The prescribed mandatory conditions are not complied with.
● Examples
● Re. Delhi Laws Act, 1912
● Edward Mills Ltd. v. State of Ajmer (1955), Minimum Wages Act, 1948
● Hamdard Dawakhana v. Union of India (1960), Drugs and Magical
Remedies (Objectionable Advertisements) Act
● Harishankar Bagla v. The State of M.P. (1954)
● Criticism
● It has a long duration of bearing for legislative control because the
legislature is the supreme organ of the state as it consists of three
main organs which are: Judiciary, Legislative and Executive.
● All of them have to work with or in relation to each other and it should
be done in a balanced way on the basis of power given to each organ
for working effectively. Instead of various advantages, delegated
legislation has weakened the legislative control executive.
● The executive has become stronger with delegated legislation, it can
easily encroach the rules and regulation of legislation by making rules.
● This concept opposes the rule of Separation of Power.
● Lack of relevant discussion before framing the law.
● It is not in acceptance with the principle of rule of law.

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● It is not stable in nature, it keeps on fluctuating on the ground of

Political changes.

● The delegated legislation is so multitudinous that the statute book would not
only be incomplete but misleading unless it be read long with the delegated
legislation which amplifies and amends it. - Sir Cecil Carr

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PYQ Analysis 2013 - 2023 - Judiciary

WHEN? WHAT? WHY?

2014 Starting from inventing the ‘basic structure’ NJAC Act, 2014;
doctrine, the judiciary has played a highly Jallikattu, Foreign
proactive role in ensuring that India develops into Bank Account
a thriving democracy. In light of the statement, Holders, NALSA - TG
evaluate the role played by judicial activism in Judgement
achieving the ideals of democracy.

2015 What are the major changes brought in the Context in the
Arbitration and Conciliation Act, 1966 through the question
recent ordinance promulgated by the President?
How far will it improve India’s dispute resolution
mechanism? Discuss.

2017 Critically examine the Supreme Court’s Supreme Court was

judgement on ‘National Judicial Appointments functioning with 25
Commission Act, 2014’ with reference to judges, Issues with
appointment of judges of higher judiciary in India. MoP

2018 How far do you agree with the view that tribunals 2017 Law
curtail the jurisdiction of ordinary courts? In view Commission Report,
of the above, discuss the constitutional validity Finance Act 2017,
and competency of the tribunals in India.

2019 “The Central Administrative Tribunal which was CAT judgement on

established for redressal of grievances and RBI pensions;
complaints by or against central government Directed Delhi HC to
employees, nowadays is exercising its powers as swiftly decide a
an independent judicial authority.” Explain. matter;

WHEN? WHAT? WHY?

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2020 The judicial systems in India and UK seem to be UK Supreme

converging as well as diverging in recent times. Court ruled on
Highlight the key points of convergence and prorogation of UK
divergence between the two nations in terms of their Parliament
judicial practices.

2020 Judicial Legislation is antithetical to the doctrine of 30 years of

separation of powers as envisaged in the Indian Khatoon Case
Constitution. In this context justify the filing of large
number of public interest petitions praying for
issuing guidelines to executive authorities.

2021 Discuss the desirability of greater representation to SC had the

women in the higher judiciary to ensure diversity, highest number of
equity and inclusiveness. lady justices in
history

2023 “Constitutionally guaranteed judicial independence Tussle between

is a prerequisite of democracy”. Comment CJI and Law Min

2023 Who are entitled to receive free legal aid? Assess the 1st National Lok
role of the National Legal Services Authority(NALSA) Adalat
in rendering free legal aid in India.

Judicial Data
1. SC
a. Strength : 34
b. Total Pending : 83350 (34% less than 1 year old)
c. 34,000 cases instituted in 2024 till now
d. 92.6% disposal rate
e. Most cases pending before 3 judge bench
2. HC
a. Strength : Sanctioned : 1114, Current : 968
b. Total Pending : 60 Lakh cases (75% more than 1 year old)
3. District & Lower Courts
a. Total Pending cases : 4.5 Crore (65% more than 1 year old)
4. Judge of Population Ratio : 21/Million, 120th Law Commission : 50/Million
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Judicial Architecture

● Although States may pass their own laws, there are no separate State constitutions,
and the same set of courts interprets both State and national law
● Each State in India has its own judicial service for the subordinate judiciary, and
judges of the High Court in a State are overwhelmingly selected from the State’s
judicial service and the State High Court’s practising bar.
○ At the same time, each State provides funds for the operation of its judiciary.
Since States in India are so socio-economically diverse, levels of funding for
the judiciary can vary considerably as can the legal cultures, litigant profile,
and governance capability of different States.
○ State judiciaries can perform strikingly differently in terms of professionalism,
backlog, and other measures of functioning and quality.
● In India, the upper judiciary is traditionally viewed not so much as an extension of the
subordinate judiciary, but as categorically distinct—more capable, less corrupt, and
with a more central role in enforcing constitutional rights.
○ Although court proceedings are mostly in English in the upper judiciary, and
the judgments always are, in the subordinate judiciary proceedings are often
in the local vernacular, while decisions are in English (although they are
frequently not reported).
● In recent years the Supreme Court has encouraged litigants to first approach the
High Courts to remedy fundamental rights violations, except for cases of national
importance.
○ Article 228 of the Constitution allows for a High Court to withdraw any matter
involving a substantial question of constitutional law from a subordinate court
to itself.
Court Description
● The Supreme Court sits in New Delhi. The Chief Justice may also direct that judges
of the Court sit in other parts of the country with the approval of the President.
○ There are long standing demands from elsewhere in India, particularly the
south, for judges to sit in multiple locations as the Court disproportionately
hears cases originating from Delhi and nearby States.
○ However, the judges of the Supreme Court have traditionally resisted
attempts to have benches outside the capital, fearing that such a practice
would further weaken the Court’s sense of institutional integrity.

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● No State has more than one High Court, but some High Courts have jurisdiction over
multiple States and over Union Territories.
○ India has 25 High Courts, which range in size from 160 sanctioned judges in
Allahabad to 3 in Sikkim.
● With 766 Districts, each with its own district court
● There are a number of tribunals, commissions, and courts whose judges are
generally not drawn directly from the State judicial service, and instead have
members that may be retired judges, former bureaucrats, social workers, or
members of civil society.
● There has been a push over many decades to create a more informal justice system
through Lok Adalats and alternative dispute resolution, as well as more local justice
through Gram Nyayalayas.

Judicial independence

Introduction

● In a democratic polity wedded to rule of law, an independent judiciary is a sine qua

non.
● In a democratic State governed by a written constitution, the task of interpreting the
constitution and being the sole arbiter in constitutional disputes is assigned to the
judiciary and it is here that it is required to be totally free of any direct or covert
influence by the legislative or the executive
● In constitutional systems based on the concept of Parliamentary sovereignty, the
adoption of strict separation of powers is ruled out, this is partly the case in India, for
in India, the doctrines of Parliamentary and constitutional sovereignty are blended
together.

Need

● To check the functioning of the organs: Judiciary acts as a watchdog by ensuring that
all the organs of the state function within their respective areas and according to the
provisions of the constitution. Judiciary acts as a guardian of the constitution and also
aids in securing the doctrine of separation of powers.
● Interpreting the provisions of the constitution: It was well known to the framers of the
constitution that in future the ambiguity will arise with the provisions of the
constitution so they ensured that the judiciary must be independent and
self-competent to interpret the provision of the constitution in such a way to clear the
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ambiguity but such an interpretation must be unbiased i.e. free from any pressure
from any organs like executive. If the judiciary is not independent, the other organs
may pressurise the judiciary to interpret the provision of the constitution according to
them. Judiciary is given the job to interpret the constitution according to the
constitutional philosophy and the constitutional norms.
● Disputes referred to the judiciary: It is expected of the Judiciary to deliver judicial
justice and not partial or committed justice. By committed justice we mean to say that
when a judge emphasises a particular aspect while giving justice and not considering
all the aspects involved in a particular situation. Similarly the judiciary must act in an
unbiased manner.

Judicial independence - Components

● Security of Tenure: The judges of the Supreme Court and High Courts have been
given the security of tenure. Once appointed, they continue to remain in office till they
reach the age of retirement which is 65 years in the case of judges of Supreme Court
and 62 years in the case of judges of the High Courts. They cannot be removed from
the office except by an order of the President and that too on the ground of proven
misbehaviour and incapacity. A resolution has also to be accepted to that effect by a
majority of total membership of each House of Parliament and also by a majority of
no less than two third of the members of the house present and voting. Procedure is
so complicated that there has been no case of the removal of a Judge of Supreme
Court or High Court under this provision.
● Salaries and Allowances: The salaries and allowances of the judges is also a factor
which makes the judges independent as their salaries and allowances are fixed and
are not subject to a vote of the legislature. They are charged on the Consolidated
Fund of India in case of Supreme Court judges and the Consolidated Fund of state in
the case of High Court judges. Their emoluments cannot be altered to their
disadvantage except in the event of grave financial emergency.
● Powers and Jurisdiction of Supreme Court: Parliament can only add to the
powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil
cases, Parliament may change the pecuniary limit for the appeals to the Supreme
Court. Parliament may enhance the appellate jurisdiction of the Supreme Court. It
may confer the supplementary powers on the Supreme Court to enable it work more
effectively. It may confer power to issue directions, orders or writs for any purpose
other than those mentioned in Art. 32. Powers of the Supreme Court cannot be taken
away.
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● No discussion on conduct of Judge in State Legislature / Parliament: Art. 211

provides that there shall be no discussion in the legislature of the state with respect
to the conduct of any judge of Supreme Court or of a High Court in the discharge of
his duties. A similar provision is made in Art. 121 which lays down that no discussion
shall take place in Parliament with respect to the conduct of the judge of Supreme
Court or High Court in the discharge of his duties except upon a motion for
presenting an address to the President praying for the removal of the judge.
● Power to punish for contempt: Both the Supreme Court and the High Court have
the power to punish any person for their contempt. Art. 129 provides that the
Supreme Court shall have the power to punish for contempt of itself. Likewise, Art.
215 lays down that every High Court shall have the power to punish for contempt of
itself.
● Separation of the Judiciary from the Executive: Art. 50 contains one of the
Directive Principles of State Policy and lays down that the state shall take steps to
separate the judiciary from the executive in the public services of the state. The
object behind the Directive Principle is to secure the independence of the judiciary
from the executive. Art. 50 says that there shall be a separate judicial service free
from executive control.

The SC/HC Appointments/Transfers

Introduction/Context

● In the matter of choosing judges, the Constituent Assembly sought to ensure that the
executive does not have unfettered discretion and complete control over the
appointments process. The assembly’s concern was to create a judiciary that was
independent and efficient.
● India is the only constitutional democracy where the judiciary appoints its own
justices—a solution offered in 1993 to redress sustained Executive interference in
judicial appointments and independence. This system has its genesis in a series of
three judgments, that is now clubbed as “three Judges cases” on appointment of
judges
● During the emergency of 1975, sixteen High Court judges were transferred from one
High court to another.

The 1 + 3 + 1 cases?

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● Union of India v Sankalchand Himmatlal Sheth (1977) : ‘consult’ meant ‘a

conference of two or more persons; ‘what the Constitution requires is consultation
with the Chief Justice, not his concurrence with the proposed transfer’; ‘in all
conceivable cases, consultation with the Chief Justice of India should be accepted by
the Government of India; ‘the Court will have an opportunity to examine if any other
extraneous circumstances have entered into the verdict of the executive if it departs
from the counsel given by the Chief Justice of India’
● S P Gupta v Union of India (Judges Transfer Case 1) (1982) : unanimously
agreed with the meaning of the word 'consultation' as determined in the Union of
India v Sankalchand Himatlal Sheth; the only ground on which the decision of the
government can be challenged is that it is based on mala fide and irrelevant
considerations. In doing so, it substantially reduced its own power in appointing the
judges and gave control to the executive.
● SC Advocates on Record Association v Union of India (Judges Transfer Case
2) (1994) : overruled the decision given in [Link] v Union of India; matter of
appointment of judges of High Courts and Supreme Court, the Chief Justice should
have the primacy and the appointment of the CJ should be based on seniority. It
further held that the Chief Justice must consult his two senior most judges and the
recommendation must be made only if there is a consensus among them.
● In re: Presidential Reference 8 (Judges Transfer Case 3) (1999): Court held that it
meant consultation with a plurality of judges in the formation of the opinion of the
Chief Justice of India, which would comprise the four most senior judges for
appointment to the Supreme Court and two most senior judges for appointment to
the High Court.
● NJAC 2014 : established a six-member National Judicial Appointments Commission
(NJAC) of which only half the members were to be judges. Three members were to
consist of the Union Minister for Law and Justice and two ‘eminent persons’
nominated by the Prime Minister, Chief Justice of India, and the Leader of the
Opposition in the Lok Sabha. Struck down by SC in 2015 (SC AOR. v. UoI)

SC Judges

● Under the Collegium system, the Chief Justice of India and his 4 senior-most
colleagues make recommendations for the candidates to be appointed as SC and
HC judges to the President.
● The Collegium right now has six judges instead of five. This is because none of the 4
senior most judges will become the next CJI, and it is mandatory for the next CJI to
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be a part of the Collegium. Justice Sanjiv Khanna is therefore the 6th member of the
Collegium right now who will succeed Chief Justice DY Chandrachud as the next CJI.
● The recommendations by the Collegium for the Supreme Court can be of two types:
One, when high court judges are to be elevated to the Supreme Court; and two,
when senior lawyers are directly appointed as Supreme Court judges.
● For appointments to the high courts, the Supreme Court Collegium consists of only 3
judges – The Chief Justice of India and two senior-most judges.
● For appointments to the Supreme Court, the Collegium consists of five judges (right
now, 6).
● Like the Supreme Court, the high courts, too, have a Collegium, headed by the chief
justice of the high court and two senior-most judges as members.
● The high court Collegium sends its judicial appointments recommendation only to the
Supreme Court Collegium.

HC Judges

● For appointments or elevations to the high courts, the HC collegium (The HC Chief
Justice + 2 senior-most judges) makes the recommendation to the state government.
● The State Government sends the names to the Centre with its input.
● The Centre gives the names to the Intelligence Bureau (IB) to conduct background
checks. The IB then sends its report to the Supreme Court Collegium (CJI + 2
Senior-most judges).
● The SC Collegium goes through the IB report and recommends the names to the
Centre for appointment.
● The Centre can accept the appointments or return the file back to the Collegium for
reconsideration.
● The Collegium has the right to reiterate the names sent back by the Centre for
reconsideration.
● If the Collegium reiterates a name, the Centre is bound to appoint the candidate (But
there is no time limit fixed for doing so).
● A similar procedure is followed for the appointment of judges to the Supreme Court,
as per the steps laid down in the Memorandum of Procedure (MoP). The exception
being, the first recommendation comes from the Supreme Court Collegium directly.

Collegium Reforms

Context
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● In 2017, under former Chief Justice Dipak Misra, Collegium resolutions were issued
publicly for the first time.
● Collegium appointments are largely decided on the basis of a Judge’s seniority, merit,
and integrity, as well as considering regional, social, and gender diversity.
● The Memorandum of Procedure of Appointment of High Court Judges (MoP), states
that when a recommendation is sent back by the Union, the Chief Justice of India will
review the names and the Union’s reasoning for rejecting them. If the Collegium
reiterates that name, i.e., recommends the name again, the appointment must go
through to the Prime Minister who will then advise the President to make the
appointment.
● The first is judges may be appointed by way of applications or nominations. Further,
apex court nominations may be made not just by the collegium, but also other judges
of the court, the prime minister, president and the attorney general
● "truly participatory" to seek inputs from a “committee of eminent citizens", which
would not be restricted to the legal fraternity
● “permanent and proper" secretariat that would collect background information and
“assess the judicial worth of a particular candidate".
● collegium to be receptive to suggestions from responsible members of the lawyer
community.
● Ensure a regional balance is maintained with adequate representation, including
women.
● In the US, judges of the Federal Court are appointed by the President with the advice
and consent of the Senate. The candidates are assessed by a committee of the
American Bar Association and reviewed by the Senate Judiciary Committee before a
vote in the Senate. There is no set retirement age for judges in the US as they
continue to hold office for "good behaviour".
● In the UK, it is the independent Judicial Appointments Commission (JAC) that
oversees the process of judges’ appointments. The JAC consists of 15 members;
three of these are judges, while 12 members are selected through a process of open
competition.
● In France, judges are appointed by the President on the recommendation of the
Higher Council of the Judiciary. The judges are appointed for three-year terms, which
are renewable on the recommendation of the Ministry of Justice.
● In South Africa, there is a 23-member Judicial Services Commission (JSC) that
advises the President to nominate the judges.

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● In most Latin American countries like Argentina and Brazil, the President nominates
the judges, subject to the approval of the respective Senates.

Judicial review

Concept

● Courts’ power to review the actions of other branches of government, especially the
court’s power to invalidate legislative and executive actions as being unconstitutional
● The power is generally conferred on superior courts. Judicial review can be of all
three kinds of actions recognised by Constitution i.e. Judicial, Legislative and
Executive.
● The matters reviewed may be decisions of lower courts, acts and decisions of
executive authorities or enactment of legislatures.
○ The first being nothing more than a supervisory power of superior over an
inferior of the same department.
○ term ‘judicial review’ is generally understood to apply only to judicial control of
administrative or legislative action.

Judicial review - Comparative

UK
● Since there is no written constitution and Parliament is supreme, there is no
judicial review of legislation enacted by Parliament.
● An English court cannot declare an act of Parliament ultra vires. This
theoretical position remains unchanged even after the enactment of the
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European Communities Act 1972, which makes the community law directly
enforceable in the United Kingdom, and the Human Rights Act 1998, which
requires the English courts to point out that an act of Parliament is not
compatible with the European Charter on Human Rights. The courts,
however, cannot declare an act of Parliament unconstitutional.
● The judicial review of administrative actions is concerned, English Courts
have always proceeded on the basis that Parliament has conferred power on
administrative authorities to be exercised lawfully, reasonably and in
accordance with well-established principles of law. Wherever it appeared to
the court that there was an abuse of power by an administrative authority, it
has intervened by granting appropriate relief to the aggrieved party.

USA
● The Supreme Court of the United States draws its authority of judicial review
from the Supremacy Clause.
● This authority was firmly asserted and established by US Supreme Court in
historic case of Marbury v Madison (1803).
● For example, in Brown v. Board of Education (1954), it was held that
segregation on the ground of race was unconstitutional and void.
● But the tool of judicial review has been double edged sword and many times
the judiciary is criticised for its conservative approach.
● Dred Scott v Stanford (1856) the US Supreme Court upheld slavery as being
protected by the right to property.

Judicial review - INDIA

India
Art 13 (1) and Art 13(2)
● The Constitution also divides the legislative powers between Centre and
states and it is forbidden for both to enter into the areas assigned to other.
○ Article 246 of the Constitution read with 7th schedule, contemplates a
clear demarcation as well as a zone of intersection between the
law-making powers of the Union Parliament and the various state
legislatures. If any dispute arises, then court uses its power of judicial
review to keep them in their limits.
● While judicial review over administrative action has evolved on the lines of
common law doctrines such as ‘proportionality’, ‘legitimate expectation’,
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‘reasonableness’ and principles of natural justice, the Supreme Court of India

and the various High Courts were given the power to rule on the
constitutionality of legislative as well as administrative actions. In most cases,
the power of judicial review is exercised to protect and enforce the
fundamental rights guaranteed in Part III of the Constitution.
● Evolution (Art 32 & 226 are crucial to exercise Judicial Review)
○ to ensure fairness in administrative action
○ to protect the constitutionally guaranteed fundamental and other rights
of citizens
○ to rule on questions of legislative competence of and between the
centre and the states
● Judicial Evolution
● AK Gopalan v State of Madras (1950) : It was held that the words ‘procedure
established by law’ were different from the ‘substantive due process of law’
guarantee provided under the 14th amendment to the US Constitution. It was
also reasoned that the framers of the Indian Constitution consciously
preferred the former expression over the latter. Thus A K Gopalan while
recognizing power of judicial review under Indian Constitution but read it in a
very narrow manner.
● Maneka Gandhi v Union of India (1980) : It was held that governmental
restraints on ‘personal liberty’ should be collectively tested against the
guarantees of fairness, non-arbitrariness and reasonableness that were
prescribed under articles 14, 19 and 21 of the Constitution. The Court
developed a theory of ‘inter-relationship of rights’ to hold that governmental
action which curtailed either of these rights should meet the designated
threshold for restraints on all of them. In this manner, the Courts incorporated
the guarantee of ‘substantive due processes’ into the language of article 21.
● Impact
○ Shankari Prasad v Union of India (1951), Keshavananda Bharti v
State of Kerala, (1973), Indira Gandhi v Raj Narain (1975) : CA's
○ SR Bommai case : proclamation on failure of constitutional machinery
○ Kehar Singh case : discretionary exercise of the prerogative of pardon
○ Satwant Singh : right to go abroad

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Judicial review - LImitations

● Judiciary has power to decide the limits of jurisdiction of other organs of the
government, but this power is not absolute; limitations on judicial review are,
generally, either express or implied.
● Express
○ Article 31-A protects certain land laws from challenges on the ground of
violation of Fundamental Rights. This article debars judicial review of law
relating to agrarian reform.
○ Article 31-B provides that without prejudice to the generality of the provision
of article 31-A, any law placed in the Ninth Schedule would be immune from
any attack based on the violation of Fundamental Rights.
■ IR Coelho v State of Tamil Nadu (2007) : the power to grant absolute
immunity at will is not compatible with basic structure doctrine. All
insertions in the Ninth Schedule after 24- 4- 1973 [the date of the
judgement in Keshavananda Bharti] may be tested on the anvil of the
basic structure
● Implied : though prohibition is not mentioned in clear words under the law, but the
court refuses to entertain the issue as matter of prudence
● Policy decisions

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○ RK Garg v Union of India,;GB Mahajan v Jalgoan Municipal Council and most

importantly Balco Employee’s Union v Union of India, are some example
where the court declined to look into the policy decision.
○ However, in 2G case,26 the Supreme Court : The court, of course, can check
the legality of a policy, but goodness or badness of a policy should not be the
area of judicial review.
● Political Questions
○ Indian Constitution recognises doctrine of separation of power; it is expected
from the Supreme Court to follow the doctrine of political question.
○ The expanded form of judicial review i.e., judicial activism, has eroded this
limitation.

Judicial Activism - Restraint

Concept

"Judicial activism on the theory of Jurisprudence called Sociological Jurisprudence, arms the
judiciary with wide legislative and executive powers" - Justice Katju

The term ‘judicial activist’ was first used by Arthur Schlesinger in an article published in
Fortune in 1947

USA
● The American Supreme Court started its active role when it asserted power to review
the law passed by Congress in Marbury v Madison.
● Dred Scott v Standford - free black to be non-citizen and held that Congress was
powerless to restrict slavery in federal territories. This case was a classic case of
judicial activism.
● Brown v Board of Education - segregation on the ground of race was unconstitutional
and void.
● Griswold v Connecticut - struck down a state law against contraceptive in the name
of an unwritten law “right to marital privacy”.
● Roe v Wade, the court legalised abortion, which started a cultural war in United
States.

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Judicial activism - India

● AK Gopalan’s case - Maneka's Case

● Romesh Thapar v State of Madras : the Constitution mentions the right to freedom of
speech and expression but does not mention the right to freedom of the press. The
Supreme Court has, however, held that the right to freedom of speech includes the
right to freedom of the press.
● Madhav Haskot’s case (1978) : providing free legal service to the poor and needy is
an essential element of the ‘reasonable, fair and just procedure’.
● Hussainara Khatoon v State of Bihar (1979) : speedy trial was held to be an integral
and essential part of the ‘right to life and liberty’.
○ This case is marked as first case of judicial activism in the history of Indian
Supreme Court, because here the court granted relief not on the petition of
the aggrieved person but on the petition of a third person.
○ The traditional rule of locus standi was that only aggrieved person, whose
right has been violated can approach the court for the redressal. This rule
was relaxed in S P Gupta v President of India (1982).
■ to enable the court to reach the poor and the disadvantaged section of
society who are denied their rights and entitlements.
■ to enable individuals or groups of people to raise matters of common
concern arising from dishonest or inefficient governance
■ to increase public participation in the process of constitutional
adjudication. This sort of litigation came to be known as Public Interest
Litigation [PIL].

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Judicial Restraint

Opposite of the judicial activism : . The courts should not, generally speaking, interfere with
the policy matters of the executives unless the policy is either against the Constitution or
some statute or is actuated by mala fides. Policy matters, fiscal or otherwise, is thus best left
to the judgement of the executive
‘ judicial restraint’ is a philosophy of judicial decision- making whereby judges avoid indulging
in their personal belief about public good and instead try merely to interpret the law as
legislated and according to precedent
Rationale
● only judiciary is empowered to decide the limits of the jurisdiction of the other organs
of the government, and therefore, this power should be exercised with utmost
humility and self-restraint
● the mistake or errors of the lower courts can be corrected by the higher courts, but
there is none above the Supreme Court to correct its error.
United States
● Gibbons v Ogden : The power to regulate inter-state commerce was granted to
Congress by the Commerce Clause of the Constitution. The Congress may pass any
law that regulates commerce, so long as that commerce is not wholly confined within
a single state, and its power to regulate such commerce is plenary.
● National Federation of Independent Business v Sebellin (Obama Care Case) :
allowed health insurance but he rejected the wide interpretation of Commerce Clause

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by the Obama administration. The Court held that the individual mandate was
constitutional as Congress had the power to assess a tax against those who did not
purchase insurance.
India :
● AK Gopalan’s Case
● Divisional Manager, Aravali Golf Course v Chander Haas (2008); ‘judges must know
their limits and are not to run the government. They must have modesty and humility
and not behave like Emperors. There is broad separation of powers under the
Constitution, and each organs of the State must have respect for the others and must
not encroach into others domain’.
● Government of AP v P Laxmi Dev (2008) : ‘invalidating an act of the legislature is a
grave step and should never be lightly taken. A court can declare a statute to be
unconstitutional not merely because it is possible to hold this view, but only when this
is the only possible view not opens to rational question’.

Thus, in the words of Justice Katju, ‘in democracy, the remedy of malfunctioning of
legislature and executive must come from the people, not the judiciary’. We must add a
caveat here that although malfunctioning must be addressed by people but under the shield
of judicial restraint illegality should not be allowed to go unattended by the Court.

SC-Suo Moto

● A ‘Suo - moto’ power is granted by S. 23 of the Contempt of Courts Act, 1971 in

regard to contempt of court. Many other common law jurisdictions give courts this
power. However, the use of the procedure in writ or judicial review jurisdiction has
been novel to India, where it is used to scrutinise or test executive (in)action.
● Courts often exercise their suo-moto jurisdiction by taking up matters based on
media reports or act on letters written to them.
● Articles 32 ans 226 confer the Supreme Court (SC) and High Courts (HC) wide
constitutional and public law powers. These powers have been interpreted to take up
cases of their own volition - without any petition being formally filed. Suo moto
powers have historically developed contemporaneously with public interest litigation,
where procedural requirements were relaxed in the interest of justice.

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● Courts often take up matters based on media reports or act on letters written to them.
For example, in Sunil Batra v Delhi Administration (1980), the Supreme Court took up
the matter based on a letter written to a judge about the torture of prisoners and
violations of prisoners’ issues, including air pollution in Delhi and the remediation of
polluted rivers.
● Since 1990, the SC has heardly nearly 50 suo moto cases, often dealing with human
rights and government policy. Several cases have been criticised for allowing the
courts to undertake ‘heroic interventions’ that often infringe upon the powers of the
legislature and the executive.
● Media support and public applause received by suo moto petitions encourages
activist judges to focus on the ‘immediacy and effectiveness’ of t providing a solution,
without carefully considering the views of parties involved leading to rule of law
concerns.
● Earlier this year, the HC and SC used their suo moto powers to hear COVID related
issues, such as access to essential supplies. The SC COVID related orders
effectively compelled the Union to draft a policy, and change their crisis management
method. Judicial intervention in this instance was largely welcomed, in light of
executive inaction, perceived or otherwise.
● The Indian Courts seem to have pioneered the use of suo moto powers, inspiring
other South Asian Courts, including Pakistan and Bangladesh.

PIL

CONTEXT

The seeds of Public Interest Litigation were sown in India by Justice Krishna Iyer and the
word was coined by Justice P.N Bhagwati.

● Four conditions
○ Some action, inaction or State of affairs
○ Which violates the rights of large number of people, or causes a large number
of people to suffer a similar wrong
○ The right is sought to be enforced or the wrong redressed, through a petition
to the Court
○ By a public spirited person or an association of persons acting on behalf of
the others
● In Supreme Court under Article 32, in High Courts underArticle 226

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NATURE

● It is a strategic arm of the Legal Aid Movement.

● Intended to bring justice within the reach of poor masses.
● Public Interest Litigation is a different kind of litigation from traditional litigations
● It is brought before the court not for the purpose of enforcing rights of one individual
against other.
● Public Interest Litigation is a cooperative or collaborative effort of the state and the
court to make social justice available to vulnerable sections of community.

PHASES

● Engine of social change

○ (1970s-1980s) : Focussed on rights of marginalised sections, such as bonded
labourers, prisoners, child labourers, and pavement dwellers etc
● Institutionalisation
○ (1990s): Issues expanded to from environmental protection, sexual
harassment at the workplace, right to education, to good governance,
accountability of the government and were sought even against private
persons
● Institutionalisation
○ (Currently visible) To curb the misuse the institution of PIL the SC issued
guidelines in State of Uttaranchal v Balwant Singh Chaufal (2010)

PIL ADVANTAGES AND PROBLEMS

Contributions :
● development in making the Constitutional guarantee of fundamental human rights a
meaningful reality for vast majority of deprived citizens.
● a powerful tool in establishing many important socio-economic guarantees
(education, health, shelter, livelihood etc.).
● triggered legislative reforms and filled legislative lacunae in important areas through
guidelines.
● enhanced sensitivity to critical issues and public confidence in the judiciary as being
receptive to social realities.
● has also had a trans-judicial influence on judicial dialogue wherein courts of South
Asian countries, such as in Hong Kong, Bangladesh and Sri Lanka, have relied on
Indian PIL cases to develop their own PIL jurisprudence.
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Judicial activism to judicial adventurism: Where do you draw the line?

● Petitioners have approached courts for all sorts of issues such as to regulate the
treatment of wild monkeys in Delhi, impose a ban on objectionable photographs in
newspapers and condemn the practice of conducting school admission interviews for
children
● courts too, especially the Supreme Court, have taken many petitions to their logical
conclusion which have not involved a question of fundamental rights but rather
issues like regulation of traffic, arbitrary allotment of petroleum outlets, investigation
of alleged bribe taking, and the authorisation and legality of e-rickshaws
○ Ulterior purpose
○ Disturbing Constitutional balance of power
○ Strain on limited judicial resources
○ Symbolic justice
○ Judicial populism
Important guidelines and observation made in State of Uttaranchal v Balwant Singh Chaufal
(2010)
● MONETARY : frivolous public interest litigation petitions, dismissed the petitions with
exemplary costs.
● NON MONETARY : even passed harsher orders, such as initiating prosecution
proceedings against the petitioner for contempt of court.

Tribunals

Tribunals are institutions established for discharging judicial or quasi-judicial duties. The
objective may be to reduce case load of the judiciary or to bring in subject expertise for
technical matters.
The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the
same level of independence from the executive as the judiciary. Key factors include the
mode of selection of members, the composition of tribunals, and the terms and tenure of
service.
In order to ensure that tribunals are independent from the executive, the Supreme Court had
recommended that all administrative matters be managed by the law ministry rather than the
ministry associated with the subject area. Later, the court recommended creation of an
independent National tribunals Commission for the administration of tribunals. These
recommendations have not been implemented.
● Article 323A
○ Deals with Administrative tribunals
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○ Can be established only by the Parliament

● Article 323B
○ Deals with tribunals for other matters- NGT, COMPAT, SAT
○ Can be established by Parliament or State Legislature

Emerging Technologies and the Judicial System

● Digitalisation of Court Proceedings

● Use of AI and Machine Learning
● E-filing of Cases
● Video Conferencing for Hearings
● Blockchain for Secure Record-Keeping

ADR

● Rationale
○ Speedy and expeditious resolution of disputes
○ Cost effective
○ Reduces the burden on public finances in a country where resources are
already strained
○ Fewer traumas to the people involved
○ Confidentiality
○ Harmonious resolution of disputes and interest to society at large

● Section 89 of the Civil Procedure Code, 1908 - if it appears to court there exist
elements of settlement outside the court then court formulate the terms of the
possible settlement and refer the same for:
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1. Arbitration
2. Conciliation
3. Meditation of Lok Adalat
● Arbitration and Conciliation Act, 1996 - modernization of The Arbitration Act, 1940,
which dealt with only dometic arbitration.
● The Legal Services Authority Act, 1987 - passed in 1987 to encourage out-of-court
settlements.
● To provide free and competent legal services to the weaker sections of the society to
ensure that opportunities for securing justice are not denied to any citizen.

Arbitration

● Arbitration is an adversarial process where parties present their case to the arbitrator
for a binding decision. It has fixed rules and formal procedures governed by law.
● dispute submitted to an arbitral tribunal.
● less formal than trial
● rules of evidence may be relaxed
● award mostly binding, generally cannot appeal arbitrator's decision, however,
exceptions exist and are mentioned in the Arbitration and Conciliation Act 1996.
● generally, little scope for judicial intervention
● Arbitrators are appointed by mutual agreement under Section 11 of the Act. They
cannot have separate discussions with parties or suggest settlement terms.
● Arbitration is available for existing and future disputes. It requires a prior agreement
between parties.

Concliation

● It is a collaborative process, with the conciliator helping parties reach a mutually

satisfactory settlement.
● Conciliators are appointed under Section 64 of the Act. They can have direct
discussions with parties and suggest settlement options.
● less formal form of arbitration
● impartial third party assists parties to reach settlement
● parties may or may not accept conciliator's recommendations
● if accepted by both parties, settlement is final and binding
● Conciliation is only available for existing disputes. No prior agreement is needed.

Mediation
● an impartial mediator, mutually selected by parties, helps parties reach mutually
accepted solutions.
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● does NOT decide disputes, or suggest solutions, helps parties communicate and
arrive at solutions/compromise themselves.
● non-binding unless compromise is reached a binding agreement is signed by parties.
● control of outcome lies with parties involved.
● The Mediation Act, 2023 was recently passed by the Indian Parliament and received
the President's assent on September 14, 2023. The key features of the Act are:

i. It promotes and facilitates mediation, especially institutional

mediation, as a means of dispute resolution in a cost-effective
and time-bound manner.

ii. The Act applies to mediations conducted in India involving

domestic parties, international commercial disputes, and
certain government disputes.

iii. It provides for pre-litigation mediation where parties must

attempt to settle civil or commercial disputes through mediation
before approaching courts or tribunals.

iv. The Act defines mediation broadly to include pre-litigation

mediation, online mediation, community mediation,
conciliation, etc.

v. It establishes the Mediation Council of India to register

mediators, recognize mediation service providers and
institutes.

vi. Mediated settlement agreements are made final, binding and

enforceable, similar to court judgments, with limited grounds
for challenging them.

vii. The Act also provides for the exclusion of the mediation period
from the computation of limitation periods for initiating legal
proceedings.

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Feature Arbitration Conciliation Mediation

Arbitration and Conciliation Arbitration and Conciliation

Governing Law Act, 1996 Act, 1996 Mediation Act, 2023

By prior agreement between By agreement or reference by Voluntary, no prior agreement

Initiation parties court needed

Arbitrator(s) appointed by Conciliator appointed by Mediator appointed by parties

Neutral Party parties parties or court or institution

Formal, follows rules set by

Procedure parties Informal, flexible procedure Informal, flexible procedure

Non-binding settlement Settlement agreement

Outcome Binding arbitral award agreement enforceable as court decree

Arbitral award enforceable as Settlement agreement not Mediated settlement agreement

Enforceability court decree directly enforceable enforceable as court decree

Proceedings confidential, Proceedings confidential,

limited grounds to challenge settlement agreement not Proceedings confidential,
Confidentiality award binding settlement agreement binding

Wide range including Wide range including Wide range including

Applicable international commercial international commercial international commercial
Disputes disputes disputes disputes

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Limited to appointment of
Court arbitrators, setting aside Limited to appointment of Referral of disputes to
Intervention awards conciliators mediation by courts

Negotiation
● no statutory recognition in India
● non binding; discussions initiated without third party mediator
● aims to arrive at negotiated settlement of dispute
● most common method of ADR
● occurs in business, NPOs, legal proceedings, between nations, in personal situations
(divorce, marriage, parenting etc.)
Lok Adalats

● Lok Adalats are conciliation bodies in India. They serve as a mechanism for
alternative dispute resolution (ADR).
● Composition: Lok Adalats typically consist of a chairman who is a sitting or retired
judicial officer, along with two other members, usually a lawyer and a social worker.
This composition helps maintain a balance of legal expertise and social perspective,
ensuring fair treatment of all parties involved.
● Participation in Lok Adalats is entirely voluntary. Both parties must agree to engage
in the process, which fosters a cooperative environment and ensures that no party
feels coerced into accepting a settlement.
● The proceedings are conducted in an informal manner, often in local languages,
making them more accessible to the general public. This approach encourages open
dialogue and reduces the intimidation often associated with formal court settings.
● Lok Adalats are known for resolving disputes in a single session, significantly
reducing the time required for resolution compared to traditional courts. This
efficiency helps ensure that justice is delivered promptly, which is crucial for fairness.
● The awards given by Lok Adalats are binding and hold the same legal weight as a
civil court decree. This finality ensures that the decisions are respected and adhered
to by both parties, contributing to the overall fairness of the process.
● There are no court fees for filing cases in Lok Adalats, and any fees paid in a
traditional court are refunded if the case is settled in Lok Adalat. This financial

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accessibility ensures that individuals from all socioeconomic backgrounds can seek
justice without economic barriers.
● Proceedings in Lok Adalats are confidential, allowing parties to discuss their issues
candidly without fear of repercussions. This confidentiality fosters trust and
encourages honest communication, which is vital for reaching fair agreements.
● Participation in Lok Adalats is entirely voluntary.
● known as the PEOPLE'S COURT
● pending cases (civil and criminal) may be referred to Lok Adalats by a court of law
● parties must agree to submit to decision of Lok Adalats
● person deciding case has role of statutory conciliator
● decision is binding and cannot be appealed
● do not have any jurisdiction to deal with cases of non-compoundable offences
*Lok Adalats alone have disposed of more than 50 lakh cases every year on average in the
last three years.

Issues

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● Though it is true that "Justice delayed is justice denied", it is also true that "justice
hurried is justice buried."
○ System of Lok Adalats is based on compromise and settlement - if parties do
not arrive at consensus:
● Case is returned to the court of law;
● Unnecessary delays in the dispensation of justice.
● Members other than Chairman are persons without a legal background, even in
Permanent Lok Adalat.
● Judges are pressured to quickly dispose of the cases for political gains:
● Limited consideration to the parties 'rights and needs.
○ Provisions of Code of Civil Procedure and the Indian Evidence Act not strictly
applicable:
● Decisions made only if element of settlement exists.
● Decisions will be in a summary manner.
● If parties do not settle, Permanent Lok Adalat shall decide the dispute.
Solutions
● Legal Awareness
● Accessible legal literacy/ legal aid programs for the marginalized.
● Awareness camp sat grassroot level.
● Mass media coverage to encourage public approach to Lok Adalats.
● Expanded Jurisdiction
● Inclusion of business disputes or conflicts where the public at large are
involved.
● More Lawyers
● Improved quality of legal aid.
● Incentivizing lawyers to provide effective legal assistance to the needy, e.g.
● Increasing renumerations.

Gram Nyayalaya
· Why in News: The Supreme Court of India has directed States and High Courts
to submit comprehensive reports on the establishment and functioning of gram
Nyayalaya. This directive comes amidst concerns about the slow implementation
of these rural courts.

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· What are Grama Nyayalaya: These are mobile village courts established to
provide speedy and easy access to justice system in the rural areas. The Law
Ministry had set up Gram Nyayalaya in 2009 through the Gram Nyayalaya Act,
2008. Gram Nyayalaya is established at intermediate/block level panchayats and
is presided by Nyaya Adhikari who is a Judicial Magistrate-first class. Nyaya
Adhikari is appointed by state government in consultation with High courts and
will hold mobile courts in every village.

i. Need: The Constitution of India under Article 39-A mandates for

free legal aid to the poor and weaker sections of society. The
Law Commission of India in its 114th report recommended the
establishment ofGram Nyayalaya for providing speedy,
substantial and inexpensive justice to the common man.

ii. Jurisdiction: Over an area specified by a notification by the

State Government in consultation with the respective High
Court. They have both civil and criminal jurisdiction over
the offences. The pecuniary jurisdiction of the Nyayalaya is
fixed by the respective High Courts. Gram Nyayalaya has been
given the power to accept certain evidence which would
otherwise not be acceptable under the Indian Evidence Act.

iii. Settlement: Gram Nyayalaya can allow for conciliation and plea
bargaining for settlement of disputes.

iv. Inspection: High Court can authorise any judicial officer

superior to Nyaya Adhikari to inspect the Gram Nyayalaya
once in 6 months.

v. Appeal: An appeal in criminal cases shall lie to the Court of

Session, which shall be heard and disposed of within a period
of six months from the date of filing of such appeal. An appeal
in civil cases shall lie to the District Court, which shall be
heard and disposed of within a period of six months from the
date of filing of the appeal.

· Issues:

i. Lack of infrastructure like buildings, office spaces and related

equipment.
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ii. Lack of man-power resources, notaries, stamp vendors etc. at

sub-district level.

iii. Inadequate Central assistance.

iv. The number of disputes settled by Gram Nyayalaya are

negligible and most are referred to District forums by appeal.
Hence, they are not effective in reducing the burden of District
Courts.

v. Absence of a regular cadre of Gram Nya Adhikari.

vi. Reluctance of state functionaries to invoke the jurisdiction of

Gram Nyayalaya. For examples, as of 2022 only 15 states
have taken steps to notify Gram Nyayalaya and they are
operational in 11 states.

vii. Ambiguities regarding jurisdiction due to the parallel existence of

alternate dispute mechanisms, tribunals, adalats etc.

viii. Lack of awareness stake holders.

· Way forward:

i. Set clear and time-bound targets for Gram Nyayalaya

establishment based on population density and caseload.

ii. Conduct training programs for Nyayadhikaris, conciliators, and

other stakeholders.

iii. Engage with tribal communities to address concerns and

develop culturally sensitive procedures for Gram Nyayalaya.
Ensure Gram Nyayalaya complement traditional justice
systems, not replace them.

iv. Conduct procedures in local language and making the process

simple.

v. Clearly define the jurisdiction of Gram Nyayalaya vis-à-vis

specialised courts. This eliminates confusion and ensures
efficient case allocation.

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vi. Making provision for Contempt of Nyaya Panchayat in the

Gram Nyayalaya Act.

vii. Develop a robust data collection system to track Gram

Nyayalaya performance and identify areas for improvement.
Periodic performance evaluations and public reporting to
ensure transparency and accountability.

viii. Launch targeted public awareness campaigns in rural areas.

Utilise local media and community leaders to educate
citizens about Gram Nyayalaya and their benefits.

Despite the many challenges and shortcomings of the existing framework of the
Village Courts in India, they have a positive role in providing access to justice to the
poor and reaching out to marginalized sections of the society. It has the potential to
reduce the pendency of cases at higher levels. However, to achieve the stated
objectives, efforts must be made to revamp the organizational and jurisdictional
aspects of Gram Nyayalaya.

The Tribunal System in India

Tribunals - Need
Need of Tribunals
● To overcome the problem of pendency in Courts and reduce workload of courts.
● To expedite decisions and to provide a forum which would be manned by lawyers
and experts in the areas falling under the jurisdiction of the tribunal.
● To perform specialised roles in various fields such as hearing disputes related to the
environment, armed forces, tax and administrative issues.
● Tribunals were not part of the original Constitution; they were incorporated into the
Constitution by the 42nd Amendment Act. 1976.

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Courts v. tribunals

Tribunals : Issues
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Primary Issues with Tribunals

Independence of tribunals
● Any involvement of the central government in administration activities of tribunals
(such as sanctioning leave for members) would affect their independence.
● The Standing Committee on Personnel, Public Grievances, Law and Justice (2015)
recommended creation of an independent body called the National Tribunals
Commission (NTC) for administration of all tribunals in India.

Pendency of Cases
● Even some tribunals face the issue of large backlog of cases.
● As of March 15, 2021, the Armed Forces Tribunal had 18, 829 pending cases; and as
of January 1, 2018, the Income - tax Appellate Tribunal had 91, 643 pending cases.
● The lack of human resources (such as inadequate number judges) is observed to be
one of the key reasons for accumulation of pending cases in courts.
● The NCLT has only 30 members against a total strength of 63. These vacancies are
concerning because as of May 31, 13, 170 insolvency petitions were pending before
benches of the NCLT.
● The Standing Committee on Personnel, Public Grievances, Law and Justice (2015)
had noted that several tribunals (such as Cyber Appellate Tribunal and Armed Forces
Tribunal) have vacancies which makes them dysfunctional.

Tribunals : Timeline

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Some Suggestions
1. Tribunals should be financially independent for its functioning; thus, finance
ministry in consultation with the nodal ministry to directly allocate funds for
their day to day functioning.
2. Financial Impact Assessment to be conducted - this will assess the financial
needs of the tribunals and Finance Ministry will have to ensure sufficient
resources are made available for the functioning.
3. Tribunal members shall not be accorded a status equivalent to that of HC/SC
judge.
4. Legislature should consult Law Commission and revisit the provisions for
direct statutory appeals to the Supreme Court from tribunals. Instead of
appeal to SC provisions may be provided for an appeal to a Division Bench of
High Court, if at all required.
5. After assessing case loads and commonality of subject matter jurisdiction
Union to consider whether certain tribunals, having niche jurisdiction, require
merging.

National Green Tribunal

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1. Established in 2010 for effective and expeditious disposal of cases that are
related to protection and conservation of the environment, forests and other
natural resources.
2. Tribunal has jurisdiction over all civil cases involving substantial question
relating to environment (including enforcement of any legal right relating to
environment).
3. ‘Special’ because India is the third country following Australia and New
Zealand to have such a system.
4. Principal Bench in New Delhi and regional benches in Pune (West), Bhopal
(Central), Chennai (South) and Kolkata (East).

Challenges
● Two important acts Wildlife (Protection) Act , 1972 and Scheduled Tribes and
other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
have been left out of NGT’s purview, which restricts the jurisdiction of NGT
and hampers functioning.
● Lack of clarity on the position of the NGT in relation to High Courts results in
NGT decisions being challenged in various High Courts under Article 226
under the argument that High Courts are superior to the NGT, despite the
NGT Act providing for appeals directly to the Supreme Court.
● The decisions of the NGT are not fully complied with ny stakeholders or the
government, under the pretext of an unfeasible timeframe.
● The lack of human and financial resources has led to high pendency of
cases-which undermines NGT’s very objective of disposal of appeals within 6
months.
Landmark Cases:
● Betty C. Alvares vs. The State of Goa and Ors. - Even a Foreign National can
approach the NGT.
● Almitra H. Patel & Ors. vs. Union of India and Ors. - Complete prohibition on
open burning of waste on lands.
● Manoj Misra vs. Delhi Development Authority & Ors. - The Art of Living
Foundation was penalised INR 5 crores for demanding the Yamuna plains
during its conduct of the World Culture Festival.

DATA

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● The first half of 2023 has been kind to the daunting number of cases pending at the
Supreme Court.
○ Typically, the first half of the calendar year shows an increase in pendency.
This year, for the first time in five years, the number of pending cases has
dropped in this period.
○ This progress is particularly impressive, considering that the court also
dedicated this time to hearing Constitution Bench (CB) cases
■ From over 69,511 cases at the beginning of the year, the number of
pending cases dropped to 68,300 in April
○ Between February (69,379 cases) and April (68,310)—the SC conducted 26
CB proceedings and pronounced 5 CB judgements
○ 6090494 cases pending in High courts
○ 44059773 cases pending in lower courts

● More than 64% of all cases are pending for more than 1 year.
● Ease of doing Business Report of the World Bank for 2018 and 2019 shows that the
time taken to decide a case has remained static at 1,445 days.
● Consistent increase in pendency of cases in the last decade, with the highest number
of cases pending in the state of Uttar Pradesh.
● Number of under - trials in prison is more than double that of convicts.

Key insights
○ Tribunals are institutions established for discharging judicial or quasi-judicial
duties. The objective may be to reduce caseload of the judiciary or to bring in
subject expertise for technical matters.
○ The Supreme Court has ruled that tribunals, being quasi-judicial bodies,
should have the same level of independence from the executive as the
judiciary. Key factors include the mode of selection of members, the
composition of tribunals, and the terms and tenure of service.
○ In order to ensure that tribunals are independent from the executive, the
Supreme Court had recommended that all administrative matters be
managed by the law ministry rather than the ministry associated with the
subject area. Later, the Court recommended creation of an independent
National Tribunals Commission for the administration of tribunals. These
recommendations have not been implemented.
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○ Whereas the reasoning for setting up some tribunals was to reduce pendency
of cases in courts, several tribunals are facing the issue of a large case load
and pendency.

Evolution of the Tribunal System

Tribunals are judicial or quasi-judicial institutions established by law.1 They intend to
provide a platform for faster adjudication as compared to traditional courts, as well as
expertise on certain subject matters.1,2 Pendency of cases in courts is one of the
key challenges faced by the judicial system.3,4 As of June 6, 2021, there are 91,885
cases pending for more than 30 years in different High Courts of India.5 As of May 1,
2021, there are 67,898 pending cases in the Supreme Court.6 The Law Commission
of India (2017) noted that pendency in courts leads to delays in the administration of
justice, thereby, impacting efficiency of the judicial system.
Further, it noted that in certain technical cases, the traditional courts need expert
knowledge for adjudication.
This note discusses the tribunal system in India in terms of its evolution,
administration, functioning, and the reforms suggested to improve their functioning.
In 1976, Articles 323A and 323B were inserted in the Constitution of India through
the 42nd Amendment.
Article 323A empowered Parliament to constitute administrative Tribunals (both at
central and state level) for adjudication of matters related to recruitment and
conditions of service of public servants. Article 323B specified certain subjects (such
as taxation and land reforms) for which Parliament or state legislatures may
constitute tribunals by enacting a law. In 2010, the Supreme Court clarified that the
subject matters under Article 323B are not exclusive, and legislatures are
empowered to create tribunals on any subject matters under their purview as
specified in the Seventh Schedule of the Constitution.

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Figure 1: Structure of Indian tribunal system

Currently, tribunals have been created both as substitutes to High Courts and as
subordinate to High Courts (see Figure 1). In the former case, appeals from the
decisions of Tribunals (such as the Securities Appellate Tribunal) lie directly with the
Supreme Court. In the latter case (such as the Appellate Board under the Copyright
Act, 1957), appeals are heard by the corresponding High Court.
The tribunal system has developed as a parallel to the traditional court system over
the last eighty years. The Income Tax Appellate Tribunal was created in 1941 to
reduce pendency of cases in courts.1 After the insertion of Articles 323A and 323B,
several tribunals such as the Central Administrative Tribunal as well as sector
specific tribunals were set up from the 1980s to 2010s. The Finance Act, 2017
consolidated several tribunals. In 2021, a Bill has been introduced that abolishes nine
tribunals and transfers the matters to courts.

Table 1: Key developments in Indian tribunal system

Year Key
developments
● The Income Tax Appellate Tribunal was established as the first Tribunal in India.
1941
The objective was to reduce the workload of courts, expedite adjudication of
disputes, and build expertise on tax matters within the Tribunal.
● The First Administrative Reforms Commission recommended that the central
1969
government should set up Civil Services Tribunals at the national level and state
levels. These Tribunals would be the final appellate authority for adjudicating on
matters related to dismissal, removal from service, and reduction in rank of civil
servants.

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● The Sixth Law Commission (1974), recommend setting up a separate

1974
high-powered tribunal and commission for adjudication of matters in High Courts.
This was aimed at reducing arrears of cases in the High Courts.

1976 ● The Swaran Singh Committee (1976) noted that the High Courts were burdened
with service cases by public servants.10 It recommended setting up: (i)
administrative tribunals (both at national level and state level) to adjudicate on
matters related to service conditions, (ii) an all-India Appellate Tribunal for
matters from labour courts and industrial tribunals, and (iii) tribunals for deciding
matters related to various sectors (such as revenue, land reforms, and essential
commodities). It further recommended that the decisions of the tribunals should
be subject to scrutiny by the Supreme Court.
● The 42nd amendment to the Constitution was passed. The amendment
empowered Parliament to constitute: (i) administrative tribunals (both at central
and state level) for adjudication of matters related to recruitment and conditions
of service of public servants, and (ii) other tribunals for adjudication of certain
subject matters including industrial disputes, taxation (such as levy and
collection of taxes), and foreign exchange.
● Several tribunals were established under different Acts.
Since
● These include the Central Administrative Tribunal for administrative matters,
the
the Securities Appellate Tribunal to hear appeals against decisions of
1980s
financial sector regulators, an Appellate Tribunal where decisions of the
Central Film

Certification Board could be challenged, and an Appellate Tribunal for Electricity to

hear tariff issues.
2017 ● The Finance Act, 2017 reorganised the tribunal system by merging tribunals
based on functional similarity.8 The number of Tribunals was reduced from 26
to 19.12,13 It delegated powers to the central government to make Rules to
provide for the qualifications, appointments, removal, and conditions of service
for chairpersons and members of these tribunals.
2021 ● The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 was
introduced in Lok Sabha in February.
● As the Bill was pending at the end of the session, an Ordinance with similar
provisions was promulgated in April 2021.
They abolish nine tribunals and transfer their functions to existing judicial bodies
(mainly High Courts).

Structure of Tribunal system in Australia, France, United Kingdom, and United States of America
○ Australia: Tribunals in Australia deal with administrative and civil matters. Appeals
against most tribunals lie with the Court of Appeal. The Court of Appeal is a division
of the Supreme Court of Australia.
○ France: France has a dual legal system which classifies courts into judicial courts
(dealing with private law) and administrative courts (dealing with public/administrative
law). France has a three-tier tribunal system within the category of administrative
courts. The first tier is Tribunal Administratif (Administrative Court), which has
jurisdiction covering all administrative matters. The appeals against Tribunal
Administratif lie to Cour Administrative d’appeal (Administrative Court of appeal). The

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third tier is the Counseil d’Etat, which finally adjudicates appeals against the first and
second tier. The appellate courts do not have jurisdiction of judicial review over
subordinate courts.
○ United Kingdom: United Kingdom has a two-tier tribunal system, which consists of:
(i) a First Tier Tribunal, and (ii) an Upper Tribunal. The appeals against the First Tier
Tribunal lie with the Upper Tribunal. Within the First Tier Tribunal there are several
Chambers with jurisdiction over different subject matters. For example, the Tax
Chamber has jurisdiction over matters related to: (i) direct and indirect taxation, and
(ii) expenses of Members of Parliament.
○ Appeals from the Upper Tribunal lie to the Court of Appeal. The Court of Appeal is the
second highest court after the country’s Supreme Court. There is a separate tribunal
for employment related matters called Employment Appeals Tribunal. The appeals of
this tribunal lie to the Court of Appeal. The administration of all courts and tribunals is
managed by a separate organisation called Her Majesty’s Courts and Tribunals
Service (HMCTS).
○ United States of America: In the United States of America, tribunals are empowered
to exercise only quasi-judicial functions related to administrative actions. The
country’s Constitution does not allow vesting judicial powers in a body which is not a
court. The decisions of these administrative tribunals are subject to judicial review by
courts having jurisdiction over them.

Key Issues
There are two major issues related to the working of tribunals. First, as quasi-judicial bodies, whether
they have the same degree of independence from the Executive as the courts that they replace.
Second, the level of their success in achieving quicker decision on disputes. In addition, their place
within the constitutional scheme has been questioned. The Supreme Court has examined some of
these issues and laid out some principles. Table 2 summarises some of these judgements.

Table 2: Key Supreme Court judgements related to tribunals

Supreme Court Principles
judgement specified
● It is constitutionally valid for Parliament to create an
S. P. Sampath
alternate institution to High Courts with jurisdiction over
Kumar Etc.
certain matters provided that the alternate body has same
versus Union of
efficacy as that of the High Court. Such tribunals will be
India and Ors.,
considered substitutes of the High Courts.
1986
● Appointments should be made either: (i) by the central
government after consultation with the Chief Justice of
India, or (ii) by a high-powered selection committee
headed by Chief Justice of India or a current Supreme

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Court Judge or current Judge from the concerned High

Court.
● A tribunal which substitutes High Courts as an alternative
L. Chandra
institutional mechanism for judicial review (to lessen the
Kumar versus
burden on High Courts) must have the status of High
Union of India
Courts.
and Ors, 1997
● Such tribunals will act as courts of first instance in respect
of areas of law for which they have been constituted.
However, decisions of these tribunals will be subject to
scrutiny by a division bench of the High Court within whose
jurisdiction the concerned tribunal falls.
● For a tribunal substituting a High Court, any weightage in
favour of non-judicial members would render the tribunal
less effective and potent than the High Court.
● Only persons with judicial experience should be appointed to
tribunals.
● To ensure uniformity in administration, a separate
independent mechanism should be set up to manage the
appointment and administration of tribunals. Until such an
independent agency is set up, all tribunals should be
under the administration of a single nodal Ministry (such
as the Ministry of Law)
● Parliament may create alternate mechanism to High Courts on
R. Gandhi
subject matters in the Union List.
versus Union of
● There is no need of a technical member if jurisdiction of
India & Anr, 2010
courts is transferred to the tribunals solely to achieve
expeditious disposal of matters. In any bench, technical
members must not outnumber judicial members.
● Only Secretary level officers with specialised knowledge and
skills should be appointed as technical members.
● Group A or equivalent rank officers with experience in the
Madras Bar
Indian Company Law Service (Legal Branch) and the Indian
Association
Legal Service (Grade I) cannot be considered for
versus Union of
appointment as judicial members. Such officers may be for
India & Anr, 2014
considered for appointment as technical members.
● Administrative support for all tribunals should come the
Ministry of Law and Justice.
● Neither the tribunals nor their members must seek or
be provided with facilities from the respective parent
Ministry or concerned Department.
Rojer Mathew ● Judicial functions cannot be performed by technical members.
versus South ● Provisions to allow removal of judges by the Executive is
Indian Bank unconstitutional.
Limited & ors, ● There should be a uniform age of retirement for all members
2019 of all the tribunals.

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● Short tenures lead to control of executives over

tribunals causing adverse effects on the
independence of judiciary.
● The impact of amalgamation of tribunals should be analysed
with judicial impact assessment.
● National Tribunals Commission should be set up to
Madras Bar
supervise appointments, as well as functioning and
Association
administration of tribunals.
versus Union of
● Members will have a term of five years instead of four years.
India, 2020
Members will be allowed to hold office till they reach 67 years
of age (instead of 65).
Madras Bar ● The Court struck down provisions related to the four-year
Association tenure and minimum age requirement of 50 years for
versus Union of members.
India, 2021

Constitutional foundation and competence of tribunals

The constitutional standing of tribunals has been questioned. In particular, whether the jurisdiction of
High Courts and Supreme Court can be removed. In 1986, the Supreme Court ruled that Parliament
may create an alternative to High Courts provided that they have the same efficacy as the High
Courts.
In 1997, the Supreme Court ruled that such Tribunals may decide questions on constitutional validity
of statutory provisions. However, they will be considered as a supplement rather than as substitutes to
High Courts on such matters. Thus, their decisions on such matters may be examined by a division
bench of the High Court. Further, the Supreme Court stated that tribunals must not adjudicate on
questions related to the constitutionality of their parent statutes. Such matters must be adjudicated
directly by High Courts.

Independence of tribunals
In 2010, the Supreme Court noted that the tribunals in India have not achieved complete
independence. In 2014, the Supreme Court while reviewing the National Tax Tribunal Act, 2005 stated
that when a tribunal is vested with jurisdiction of High Courts, the tribunal must be free from executive
interference. Any involvement of the central government in administrative activities of tribunals (such
as sanctioning leave for members) would affect their independence. The components which
determine the independence of tribunals include: (i) selection process of the members, (ii)
composition of the tribunals, and (iii) terms of office and service conditions of the members.
Selection process of members: In 1986, while reviewing the Administrative Tribunal Act, 1985
the Supreme Court stated that the total insulation of the judiciary from all forms of interference from
the executive is a basic essential feature of the Constitution. Thus, empowering the central
government to appoint the Chairperson and other members of a Tribunal established as a substitute
of a High Court, violates the independence of judiciary. In 2019, the Supreme Court reiterated that the
lack of judicial dominance in the selection committees of tribunals violates the doctrine of separation
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of powers and is an encroachment on the judicial [Link], the Court clarified that the
Executive is often a party in litigations and hence, they should not be allowed to be a dominant party
in judicial appointments. The mechanism for appointment and removal of members in tribunals, and
tenure of their employment should have adequate protection from legislative and executive
interference.
In November 2020, the Court specified that selection committees of tribunals should consist of: (i) the
Chief Justice of India or his nominee (with a casting vote), (ii) the presiding officer of the tribunal or a
retired Supreme Court judge or Chief Justice of High Court in case the presiding officer is not a
judicial member or if he is seeking re-appointment, (iii) Secretary to the Ministry of Law and Justice,
(iv) Secretary to central government from non-parent Ministry, and (v) Secretary from parent Ministry
(without a vote).

Composition of Tribunals: The Supreme Court has noted that the members of a tribunal
may be selected from departments of the central government as well as from various other fields of
expertise. The presence of expert members (technical members) along with judicial members is a key
feature of tribunals which distinguishes them from traditional courts. Only persons with a judicial
background (such as Judges of the High Court and lawyers with the prescribed experience who are
eligible for appointment as High Court Judges) may be considered for appointment as Judicial
Members.
The Supreme Court specified that there is no need of a technical member if jurisdiction of courts is
transferred to tribunals to achieve expeditious disposal of matters. In such cases, any provision for
technical members in addition to or in substitution of judicial members would clearly be a case of
dilution and encroachment upon the independence of the [Link], where a tribunal has
technical members, the technical member must always sit with a judicial member in a two-member
bench. In case of a larger bench, the number of non-judicial members must not exceed the judicial
members.
Term of office: In 2019, the Supreme Court stated that a short tenure of members (such as
three years) along with provisions of re-appointment increases the influence and control of the
Executive over the judiciary. Moreover, in such short term of office, by the time the members achieve
the required knowledge, expertise and efficiency, one term gets over. This prevents enhancement of
adjudicatory experience, thereby, impacting the efficacy of tribunals. Further, it discourages
meritorious candidates from applying for such positions as they may not leave their well-established
careers to serve as a member for a short period. In 2020, the Supreme Court stated that the term of
office for the Chairperson and other members must be five years (subject to a maximum age limit of
70 years for the Chairperson and 67 years for other members).

Administration of Tribunals: In 1997, the Supreme Court recommended setting up an

independent mechanism for uniform management of appointments and administration of tribunals.
The Court specified that until such an independent agency is set up, all tribunals should be under the

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administration of a single nodal Ministry (such as the Ministry of Law). Subsequently, in 2014, the
Court specified that administrative support for all tribunals should be from the Ministry of Law and
Justice. It further specified that neither the Tribunals nor their members must seek or be provided with
facilities from the respective parent Ministry or concerned Department.
The Standing Committee on Personnel, Public Grievances, Law and Justice (2015) recommended
creation of an independent body called the National Tribunals Commission (NTC) for administration of
all tribunals in India. In 2020, the Supreme Court also emphasised on creating the NTC to supervise
appointments, as well as functioning and administration of tribunals. However, till now, the NTC has
not been created.

Pendency of cases
One of the key purposes of tribunals is to reduce the workload of courts, so that there is quicker
disposal of cases. However, even some tribunals face the issue of a large backlog of cases. For
example, as of March 15, 2021, the central government industrial tribunal cum-labour courts had
7,312 pending cases; as of February 28, 2021, the Armed Forces Tribunal had 18,829 pending cases;
and as of January 1, 2018, the Income-tax Appellate Tribunal had 91,643 pending cases.
The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 has abolished
nine tribunals and transferred their functions to High Courts. This action would add to the pending
cases in such High Courts.
The lack of human resources (such as inadequate number judges) is observed to be one of the key
reasons for accumulation of pending cases in courts. The Standing Committee on Personnel, Public
Grievances, Law and Justice (2015) had noted that several tribunals (such as Cyber Appellate
Tribunal and Armed Forces Tribunal) have vacancies which makes them dysfunctional. As of March 3,
2021, there were 23 posts vacant out of total 34 sanctioned strength of judicial and administrative
members in Armed Forces [Link] Committee stated that NTC being a dedicated independent
agency for providing resources (includes infrastructural, financial, and human resource) to tribunals
would help in resolving such issues.
A judicial impact assessment would be helpful to determine the extra resources required to handle
fresh cases resulting from enactment of a new law. In 2019, while reviewing the amalgamation of
tribunals, the Supreme Court stated that judicial impact assessment should be conducted to analyse
the amalgamation of tribunals. However, the government has not released any report on judicial
impact assessment on the amalgamation of tribunals in 2017 or the recent abolition of some tribunals.

Annexure
Appeals from tribunals usually lie with the concerned High Court. However, some laws specify that
appeals will be heard by the Supreme Court. Table 3 illustrates some tribunals and the court with
appellate jurisdiction over them.

Table 3: Appellate courts for some Tribunals in India

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Name of Tribunal Act establishing the Tribunal Appellate

Court
Industrial Tribunal The Industrial Disputes Act, 1947 High Court
Income-Tax Appellate Tribunal The Income-tax Act, 1961 High Court
Customs, Excise and Service Tax The Customs Act, 1962 High Court
Appellate Tribunal
Appellate Tribunal The Smugglers and Foreign Exchange High Court
Manipulators
(Forfeiture of Property) Act, 1976
Central Administrative Tribunal The Administrative Tribunal Act, 1985 Supreme
Court
Railway Claims Tribunal The Railway Claims Tribunal Act, 1987 High Court
Securities Appellate Tribunal The Securities Exchange Board of Supreme
India Act, 1992 Court
Debts Recovery Appellate Tribunal The Recovery of Debts Due to Banks High Court
and Financial
Institutions Act, 1993
Telecom Disputes Settlement and The Telecom Regulatory Authority of Supreme
Appellate Tribunal India Act, 1997 Court
National Company Law Appellate The Companies Act, 2013 Supreme
Tribunal Court
National Consumer Disputes Redressal The Consumer Protection Act, 2019 Supreme
Commission Court
Appellate Tribunal for Electricity The Electricity Act, 2003 Supreme
Court
Armed Forces Tribunal The Armed Forces Tribunal Act, 2007 Supreme
Court
National Green Tribunal The National Green Tribunal Act, 2010 Supreme
Court

Contemporary Issues

A. All India Judicial Service: -

1. Why in News: President Droupadi Murmu has called for an “All India Judicial
Service” to recruit judges during her inaugural address at the Supreme Court’s
Constitution Day celebration on Sunday (November 26, 2023). The president said that ‘it
will help make the judiciary diverse by increasing representation from marginalised social
groups.’ The President’s comment has again reignited the debate on creation of All India
Judicial Service (AIJS).
2. Background of the Issue: AIJS is a proposed centralized recruitment system for
judges at the level of additional district judges and district judges across all states.
Originating from Law Commission reports in 1958 and 1978, AIJS seeks to address
structural issues like varying pay, faster vacancy filling, and standardized nationwide
training. The idea was revisited in 2006 by the Parliamentary Standing Committee,
supporting a pan-Indian judicial service.
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3. Constitutional Basis of the Issue: Article 312 of the Constitution can be invoked for
the establishment of AIJS, similar to other central civil services, upon a resolution by the
Rajya Sabha supported by at least two-thirds of its members. However, Article 312
(2) states that the AIJS cannot include any post inferior to that of a district judge, as
defined in Article 236 of the Indian Constitution.
4. Why do we need AIJS:
i. There are large vacancies in the posts in lower judiciary across the
country and a huge pendency of cases in lower judiciary. One of the
primary reasons is the inordinate delay in holding regular judicial
recruitment exams by the states.
ii. The ever continuing decline in quality of selected judicial officers
through the current recruitment system have delayed delivery of
justice, increased pendency of cases and impaired the quality of
judgments. This also has a resultant effect on the competence of
higher judiciary.
iii. State judicial services are not attractive for ‘best talents’ due to low
salaries, rewards and compensations awarded by the state
governments.
iv. Adjudication is a specialization which requires state of the art training
institutes and professors. State institutes lack the capacity to allow
such adjudication exposure to the selected candidates.
v. There are constant allegations that the current judicial appointments at
the lower level and upper levels suffer from subjectivity, corruption
and nepotism. Hence, there is a need to reflect the social reality and
diversity of the country by establishing a neutral and impartial system
of recruitment.
5. Benefits of AIJS:
i. The creation of AIJS will transfer control over state judiciary to Union
government, by removing control of High Court (HCs) on
recruitment process. It would undermine the independence of
judiciary and dilute the separation of power. Several HCs are in
disagreement with the All India Judicial Service.
ii. A centralised recruitment process is seen as an affront to federalism
and an encroachment on the powers of states granted by the
Constitution.
iii. Courts up to District and Sessions Judge usually transact their business
in State language. AIJS officers would find it difficult to acclimatize
themselves with local language, thus hampering dispensation of
justice.
iv. AIJS does not take into account the problem of wide variation in the
local laws, practices and customs across States.
v. The AIJS would limit the promotional avenues for the already selected
officers through the current system and may be rendered unattractive
on account of lower number of district judges elevation to the HCs as
compared to the Bar.
6. Way forward:

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i. Before the implementation of AIJS by the Parliament, there is a need

to build consensus among various associated stakeholders.
Implementing AIJS on a pilot basis in select states to assess its
impact and address concerns gradually can be considered.

ii. The AIJS examinations must be held regularly and the recruitment
process must be completed in a time bound manner.

iii. AIJS must be designed with flexible mechanisms allowing adaptation

to local laws, languages, and customs, ensuring effective
functioning without disregarding regional nuances.

iv. A periodic review mechanism must be established to assess the

impact of AIJS on federal structure, autonomy, and the effective
functioning of the judiciary, making necessary adjustments as and
when needed.

B. Regional Benches of the Supreme Court: -

1. Why in news: The Parliamentary Standing Committee on Personnel, Public Grievances,
Law, and Justice recently conveyed to the Lok Sabha that the Law Ministry has endorsed
its proposal to establish regional benches of the Supreme Court throughout India.
However, the apex court has consistently dismissed the notion, noting that the matter is
currently sub judice.
2. Background of the Issue: Supreme Court regional benches are proposed judicial
establishments where a few judges from the apex court sit periodically to hear cases
from specific regions of the country. This essentially means that the Supreme Court
would have branches in different parts of the country, allowing for easier access to justice
for people residing in those regions. In 2009, the 18th Law Commission also
recommended the formation of regional benches of the Supreme Court of India. Further,
in 2021, via a private member bill demands were raised to set up four regional benches
of the Supreme Court in Delhi, Mumbai, Chennai, and Kolkata for the North, West,
South, and East zones, respectively, to decentralise the Supreme Court.
3. Constitutional Basis of the Issue:
i. Article 130 says that “the Supreme Court shall sit in Delhi or in such
other place or places, as the Chief Justice of India may, with the
approval of the President, from time to time, appoint.” It shows that
the Supreme Court Rules give the Chief Justice of India the power to
constitute Benches.
ii. Article 145(3) of the Constitution provides for the setting up of a
Constitution Bench. Further, under Article 143, a minimum of five
judges need to sit for deciding a case involving a “substantial
question of law as to the interpretation of the Constitution”, or for
hearing any reference, which deals with the power of the President to
consult the Court.
4. Significance of Regional Benches:
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i. In the Supreme Court, a little more than 80,000 cases are currently
pending adjudication out of which 60,000 cases are civil. This cannot
be alleviated only through usual methods.
ii. In 2023, the Supreme Court witnessed a 31% increase in the disposal
of cases compared to 2022. However, such a disposal rate is
negligible when compared to the total pendency of cases.
iii. The setting up of regional benches would also lead to greater
opportunities and the democratization of the Bar.
iv. People are reluctant to accept arbitrary actions of the state and its
agencies and are increasingly approaching courts of law. The
outcome of such cases demands further adjudication by the Supreme
Court. Also, it becomes difficult for people living in States far away
from Delhi to agitate their cause.
v. The establishment of regional benches will increase the number of
judges as well as lawyers resulting in a much-needed boost to our
judicial system
5. Challenges/ Argument (against) associated with regional benches:
i. Instead of setting up Regional Benches, the Law Commission of India
in its 95th and 229th report recommended setting up a separate
court of appeal. At present, the Supreme Court is overburdened with
matters such as transfer petitions, arbitral appeals, etc.
ii. Since a majority of cases filed in the Supreme Court do arise from the
High Courts close to Delhi. Instead of setting regional branches of
the Supreme Court, a mechanism should be put in place to scrutinize
the types of petitions that are permitted to be admitted to the top
court by making significant reforms in the High Court.
iii. Different benches might interpret laws differently, leading to
conflicting judgments and legal uncertainty. Divergent interpretations
could create a “patchwork legal system” with varying standards
across regions, potentially harming business and investment.
iv. Judges in regional benches might be more susceptible to local political
pressures or social influences, leading to biased decisions. This
could undermine the impartiality and national perspective excepted
from the Supreme Court.
v. Setting up and maintaining Supreme Court regional benches across
India would be expensive, requiring resources for infrastructure,
staff, and security. Coordinating schedules, logistics, and
communication between different benches could create
administrative difficulties.
vi. Supreme Court Regional benches might overshadow or weaken the
central authority of the Supreme Court, potentially diminishing its
national stature and impact. This could lead to confusion about which
bench to approach for specific cases, creating complexities in
navigating the legal system.
6. Way forward: Since the matter of regional benches is sub-judice, the following measures
can be explored in the meanwhile, to enhance citizen’s accessibility to Justice from the
SC.
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i. Virtual hearings by can well be an alternative to regional benches. A

mechanism for virtual hearing in the SC can be put in place, where
preliminary and admission hearings are conducted virtually, while the
final hearings are conducted physically.
ii. Special Leave Petitions (SLPs) constitute over 90% of the Supreme
Court’s case docket. A mechanism should be put in place where the
Supreme Court would admit only those SLPs, which have been
certified by the concerned High Courts.
iii. The judicial vacancies, Judicial infrastructure and Judicial Processes
must be streamlined, would reduce the problem of Judicial pendency.
For ex- All-India Judicial Service to boost the quality of judicial
appointments.
iv. The SC must also put in place a mechanism for scrutinising the types of
petitions that are permitted to be admitted in the top court. Transfer
petitions, arbitral appeals must be transferred to the respective HCs.
v. The principal bench of SC at Delhi must retain its original jurisdiction
under Article 131, its advisory jurisdiction under Article 143, and its
writ jurisdiction under Article 32 of the Constitution, even if the
regional branches are established.

The debate on regional benches for the Supreme Court involves considerations of
accessibility, case management, and judicial efficiency. While proponents see it as vital for
access, opponents emphasize potential drawbacks. Striking a balance necessitates thorough
evaluation and careful implementation of reforms.

C. Post-Retirement Appointment of Judges: -

1. Why in News: The practice of judges accepting official posts after retirement has become
a subject of national debate, particularly in light of recent events where a former judges
have joined political parties shortly after resigning from the judiciary, which has raised
questions about judicial conduct.
2. Constitutional basis of the issue:
i. Article 124(7) of the Indian Constitution, prohibits a retired judge of
the Supreme Court from practising before any court or authority in
India. This restriction is aimed at maintaining the independence and
impartiality of the judiciary. However, the Constitution does not
explicitly prohibit retired judges from accepting post-retirement
assignments or appointments.
3. Background of the Issue:
i. Since 1950, there have been 44 Chief Justices of India
who have accepted post-retirement jobs. As per
available data, as many as 70 of over 100 retired
Supreme Court judges have taken up such
assignments in organizations like NHRC, National
Consumer Disputes Redressal Commission, Armed
Forces Tribunal, Law Commission of India etc.
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Some have been appointed heads of commissions or

as governors of states. About 36 per cent of the
appointments were made by the central government,
mainly to tribunals, commissions, ad hoc committees
and government positions like that of Lokayukta.
ii. In, Bombay Lawyers Association v. Union of India,
The Supreme Court dismissed a public interest
litigation (PIL) petition seeking a mandatory
cooling-off period of two years for retired judges
before accepting post-retirement appointments. The
apex court stated that it was not within the court's
jurisdiction to mandate a cooling-off period.
iii. The 14th Law Commission, headed by MC Setalvad,
had recommended that judges should not take up
post-retirement jobs from the government; it also
recommended setting the Cooling-off Period after
retirement. However, there is no specific rule that
prevents judges from accepting such positions.
4. Arguments in Favour:
i. Proponents argue that judges possess valuable expertise and
experience that can be beneficial to the government and public
service sectors. By accepting official posts post-retirement, judges
can contribute to policy making and governance based on their
deep understanding of legal principles and judicial processes.

ii. Unlike abroad, a judge of the higher judiciary in India retires at a

comparatively young age and is capable of many more years of
productive work.

iii. Supporters of post-retirement appointments argue that judges are

held to high standards of integrity throughout their careers, and
this integrity is likely to carry over into their roles in official
positions. By appointing retired judges to key positions, there's an
assurance of upholding ethical standards and impartiality in
decision-making.

iv. Certain official positions require specific expertise or understanding

of legal intricacies, which retired judges are well-equipped to
provide. These appointments ensure that crucial positions are filled
by individuals with deep insights into legal matters, contributing to
effective governance and administration.

v. Offering post-retirement appointments ensures that the country

retains the knowledge and skills of seasoned jurists. It allows for
the continued contribution of judicial veterans to public service
beyond their tenure on the bench.

5. Arguments against:
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i. Critics argue that accepting official posts after retirement may

compromise judicial independence, as it could create perceptions of
favouritism towards the appointing authority. This quid pro quo
undermines public trust in the judiciary and raises questions about the
impartiality of judicial decisions made during their tenure.
ii. There's a concern that post-retirement appointments may create
conflicts of interest, especially if the former judge's decisions or
rulings during their tenure benefit the appointing authority. This
could erode public confidence in the judiciary and raise doubts about
the motivations behind judicial decisions.
iii. These appointments are seen as part of a larger strategy to undermine
the judiciary's independence by gradually eroding its authority
and integrity. By enticing judges with political appointments, the
government risks compromising the judiciary's ability to act as a
check on executive power.
6. Way forward:
i. The government should prioritise the enactment of a comprehensive
law to regulate post-retirement assignments for judges of
constitutional courts. This legislation should establish clear
guidelines, including provisions for cooling-off periods and
restrictions on certain appointments, to uphold judicial independence.
ii. The judiciary should reinforce its commitment to upholding ethical
standards and maintaining the integrity of the judicial system. Clear
guidelines and a code of conduct should be established for judges
regarding post-retirement engagements to prevent any perception of
impropriety. This is necessary to prevent conflict of interest.
iii. There could be an increase in retirement age.
iv. A special law can also be passed by Parliament prohibiting
retired judges from taking up any appointment for two years.
v. Drawing upon international best practices and experiences, India can
learn from other countries' approaches to regulating post-retirement
assignments for judges. Comparative studies and engagement with
global legal experts can provide valuable insights for refining
domestic regulations.

***

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Separation of Powers

WHEN? WHAT? WHY?

2019 Do you think that constitution of Ordinances issued in 2019 were

India does not accept principle of questioned as not being urgent during
strict separation of powers rather it is election year; SC directives construed
based on the principle of ‘checks as Judicial Activism (Ganga River
and balance’? Explain. Cleaning, Family Welfare Committee)

Origin

Origin coined by a French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws)
published in 1748 there can be no liberty if the legislative and executive powers are
amalgamated in the same person, or body and judicial power is not separated from the
Legislative and Executive power The origin of this principle goes back to the period of Plato
and Aristotle. It was Aristotle who for the first time classified the functions of the
Government.

Historical Background
Jurist Division of Power

L E J

Aristotle Deliberative: It is the Magisterial: The It determines

Sovereign power in the Magistrates are the disputes
Constitution like officers of State, its
declaring war and peace, Managers.
formation and dissolution
of alliances, death
sentence and exile etc.

Locke Executive power: Legislative power: Federative

Executive and Judicial Rule making power power: Power
powers regulating the
Foreign affairs

Montesquieu Law making power Implementation of the Adjudication of

Law disputes

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Separation of powers : Comparison

Powers UK US India

Legislative Parliament Congress (US Parliament

Parliament)

Executive King President President

Judicial Courts/Supreme Supreme Court Supreme Court/Judiciary

Court

Analysis The King being the The President of the The Parliament is
executive head is United States interferes competent to make any
also an integral part with the exercise of law subject to the
of the legislature. His powers by the provisions of the
ministers are also Congress through the Constitution and there is
members of one or exercise of his veto no other limitation on its
other Houses of power. He also legislative powers.
Parliament. (goes exercises the law Similarly, the Judiciary is
against SoP) The making power in independent in its field
House of Commons exercise of his and there can be no
control the executive. treaty-making power. interference with its
The Supreme Court He also interferes with judicial functions either
of the United the functioning of the by the executive or by
Kingdom was Supreme Court through the legislature. At the
established in 2009; the exercise of his same time, the Court
marked a significant power to appoint cannot arrogate to itself
constitutional judges. In the same any function, which is left
change, separating manner Congress to the domain of the
the judicial function interferes with the other two branches,
from the legislative power of the President namely, the executive
function of the House through vote on budget, and the legislature.
of Lords and approval of Thus, no organ can
establishing an appointments by the overstep the essential
independent apex Senate and the functions of the other
court for the UK. ratification of treaty. It organ. Apart from the
Thus, we can say also interferes with the Directive Principle laid
that doctrine of exercise of powers by down in Article 50 which
separation of powers the courts by passing enjoins separation of
is not applicable to procedural laws, judiciary from the
Britain in strict sense. creating special courts executive, the
and by approving the constitutional provisions
appointment of judges. does not embody any
In its turn, Judiciary

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 Magna Carta Mains 2024 : Atish Mathur

interferes with the formalistic and dogmatic

powers of the Congress division of powers.
and the President
through the exercise of
the power of the judicial
review.

The three organs can practically not be segregated into three watertight compartments due
to their interdependence on each other to ensure efficacious governance. They have to work
in accordance and in consonance to achieve a meaningful sustenance and purposeful
progress of citizens. Therefore the system of checks and balances has to be followed so that
each organ can work efficiently without any abuse of power vested in them.

Executive in India and Doctrine of Separation of Powers

Type Executive Power of the Union Executive Power of the states

Vesting of Article 52 provides that there shall be Article 153 provides that there
Executive a president of India. Article 53(1) shall be a Governor for each
Power declares the President to be the head State. Article 154(1) provides that
of the Union Executive. It provides the executive power of the State
that the executive power of the Union shall be vested in the Governor
shall be vested in the President and and shall be exercised by him
shall be exercised by him either either directly or through officers
directly or through officers subordinate to him in accordance
subordinate to him. with this Constitution.

Extent of Article 73(1) provides that the Article 162 deals with the extent
Executive executive power of the Union extends of executive power of State and it
Power to the matters with respect to which states that Subject to the
Parliament has power to make laws. It provisions of this Constitution,
extends to the exercise of such rights, the executive power of a State
authority and jurisdiction as are shall extend to the matters with
exercised by the Government of India respect to which the Legislature
by virtue of any treaty or agreement. of the State has power to make
The power is however, subjected to laws: Provided that in any matter
the provisions of the Constitution. The with respect to which the
executive power of the Union does Legislature of a State and
not extend to a matter enumerated in Parliament have power to make
the Concurrent list of the Seventh laws, the executive power of the
Schedule unless expressly provided State shall be subject to, and
in the Constitution or expressly limited by, the executive power
entrusted by a law made by expressly conferred by this
Parliament Constitution or by any law made

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by Parliament upon the Union or

authorities thereof

Conduct of Article 77 requires that every Article 166 provides that all
business of executive action of the Union shall be executive action of the
Government expressed to be taken in the name of Government of a State shall be
of India and the President. Orders and other expressed to be taken in the
State Instruments so executed shall be name of the Governor. Orders
authenticated in such a manner as and other instruments made and
may be prescribed by rules to be executed in the name of the
made by the President.. The Governor shall be authenticated
President is further empowered to in such manner as may be
make rules for the more convenient specified in rules to be made by
transaction of the business of the the Governor, The Governor shall
Government of India and for the make rules for the more
allocation of the said business among convenient transaction of the
the Ministers. All the executive actions business of the Government of
of the Union government are taken in the State, and for the allocation
his name. He appoints officials of the among Ministers of the said
Union Government, Prime Minister, business in so far as it is not
and Council of ministers at the advice business with respect to which
of the Prime Minister, Chief Justice the Governor is by or under this
and judges of Supreme Court and Constitution required to act in his
High Court at the advice of the Chief discretion.
Justice of India etc.

Type Executive Power of the Union Executive Power of the states

President or Article 59(1) provides that the Article 158(1) provides that the
Governor not President shall not be a member of Governor shall not be a member
to be either House of Parliament or of a of either House of Parliament or
member of House of the Legislature of any State, of a House of the Legislature of
either and if a member of either House of any State specified in the First
Parliament Parliament or of a House of the Schedule, and if a member of
or State Legislature of any State be elected either House of Parliament or of
Legislature President, he shall be deemed to a House of the Legislature of any
have vacated his seat in that House such State be appointed
on the date on which he enters upon Governor, he shall be deemed tto
his office as President. have vacated his seat in that
House on the date on which he
enters upon his office as
Governor

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Power of Article 143(1) provides that if it

President to appears to the President that a
consult question of law or fact has arisen, or
Supreme is likely to arise, which is of such a
Court nature and of such public importance
that it is expedient to obtain the
opinion of the Supreme Court upon it,
he may refer the question to that
Court for consideration and the Court
may, after such hearing as it thinks fit,
report to the President its opinion
thereon.

Competent Article 309 provides that President is Article 309 provides that
to frame competent to make rules regulating Governor is competent to make
Rules the recruitment, and the conditions of rules regulating the recruitment,
regarding service of persons appointed, to such and the conditions of service of
conditions of services and posts in connection with persons appointed, to such
service the affairs of the Union, until provision services and posts in connection
in that behalf is made by or under an with the affairs of the State, until
Act of the appropriate Legislature. provision in that behalf is made
Any rules so made shall have effect by or under an Act of the
subject to the provisions of any such appropriate Legislature. Any
Act. Every person who is a member of rules so made shall have effect
a defence service or of a civil service subject to the provisions of any
of the Union or of an all India service such Act. Every person who is a
or holds any post connected with member of a civil service of a
defence or any civil post under the State or holds any civil post
Union, holds office during the under a State holds office during
pleasure of the President. (Article the pleasure of the Governor of
310) the State. (Article 310)

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Interference of Executive in Legislature

Type Interference of President in Interference of Governor in

Parliament Legislature

Executive - Article 79 provides that the Article 168 provides that State
Part of Union Parliament shall consist of Legislature shall consist of the Governor,
Legislature the President and two Houses, and Where there are two Houses of the
also known as the council of States Legislature of a State, one shall be
and the House of the People. He known as the Legislative Council and
nominates 12 persons, eminent the other as the Legislative Assembly,
in literature art science or social and where there is only one House, it
service to the Rajya Sabha shall be known as the Legislative
(Article 80(1)(a). He may also Assembly. The Governor of a State may
nominate 2 persons belonging to nominate one member of that
Anglo Indian community to the community to the Assembly if he is of
Lok Sabha, if in his opinion that opinion that the Anglo Indian community
community is not adequately needs representation in the Legislative
represented in the House Assembly of the State and is not
(Article 331). adequately represented therein (Article
333)

Power to It is the President who is vested Article 174(1) states that the Governor
summon, with the power to summon the shall from time to time summon the
prorogue Sessions of the Houses of House or each House of the Legislature
and Parliament. The time and place of the State to meet at such time and
dissolve of holding the session is to be place as he thinks fit, but six months
determined by him.[Article 85(1)] shall not intervene between its last
Again it is the president who has sitting in one session and the date
power to prorogue the session of appointed for its first sitting in the next
House of People. The President session. Article 174(2) provides that the
may dissolve Lok Sabha before Governor may from time to time
the expiry of its term of five Prorogue the House or either House;
years. [Article 85(2)] dissolve the Legislative Assembly

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Power to The president may address Article 175 provides that the Governor
address either House of Parliament or may address the Legislative Assembly
the Houses both Houses assembled or, in the case of a State having a
together and for that purpose, he Legislative Council, either House of the
may require the attendance of Legislature of the State, or both Houses
the members. He may send assembled together, and for that
message to either House of purpose, he may require the attendance
Parliament with respect to a bill of members. He may send messages to
then pending in the the House or Houses of the Legislature
House.[Article (86)] The of the State, with respect to a Bill then
President addressee both pending in the Legislature. The
houses of Parliament assembled Governor shall address the Legislative
together after general election Assembly or, in the case of a State
and at the commencement of having a Legislative Council, both
the first sessions of each Houses assembled together after
year.[Article (87)] general election and at the
commencement of the first sessions of
each year. (Article 176)

Type Interference of President in Interference of Governor in

Parliament Legislature

Interference Every Bill passed by both houses Every Bill passed by the Legislative
in the of Parliament is sent to the Assembly of a State or, in the case
Legislative President for his assent and of a State having a Legislative
procedure becomes and Act only when it is Council, has been passed by both
assented to by him. He may give Houses of the Legislature of the
his assent or withhold it (Article State, is presented to the Governor
111). Every year the President for his assent. He may give his
causes to be laid before both assent or withhold it (Article 200).
houses of Parliament the Annual Article 202(1) states that the
Financial Statement(the Annual Governor shall in respect of every
Budget).Article 112(1). financial year cause to be laid before
the House or Houses of the
Legislature of the State a statement
of the estimated receipts and
expenditure of the State for that year
i.e annual financial statement

Decision on If any question arises as to If any question arises as to

question as disqualification of a member of disqualification of a member of a
to the either House of Parliament, then House of the Legislature of a State,
Disqualificat-i the question shall be referred for then the question shall be referred
ons of the decision of the President and for the decision of the Governor and
members

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his decision shall be final. Article his decision shall be final. Article
103(1). 192(1).

Appointment Article 75(1) provides that the Article 164(1) provides that the chief
of Prime Prime Minister shall be appointed Minister shall be appointed by the
Minister, by the President and the other Governor and the other Ministers
Chief Ministers shall be appointed by shall be appointed by the Governor
Ministers and the President on the advice of the on the advice of the Chief Minister,
other Prime Minister. The Ministers and the Ministers shall hold office
Ministers shall hold office during the during the pleasure of the Governor
pleasure of the President. [Article
75(2)]

Duty to Duty has been imposed on the The similar duty has been imposed
furnish Prime Minister to communicate to on the Chief Minister by Article 167.
informatio n the President: a. all decisions of It shall be the duty of the Chief
to the the Council of Ministers relating Minister of each State: a. to
Executive to the administration of the affairs communicate to the Governor of the
of the Union and proposals for State all decisions of the Council of
legislation; b. Information relating Ministers relating to the
to the administration of the affairs administration of the affairs of the
of the Union and proposals for State and proposals for legislation;
legislation as the President may b. Information relating to the
call for; [Link] the President so administration of the affairs of the
requires, to submit any matter for State and proposals for legislation as
the consideration of the Council the Governor may call for; and c. If
of Ministers on which a decision the Governor so requires, to submit
has been taken by a Minister but for the consideration of the Council
not considered by the Council. of Ministers any matter on which a
(Article 78.) decision has been taken by a
Minister but which has not been
considered by the Council.

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Type Interference of President in Interference of Governor in Legislature

Parliament

Ordinance When both Houses of When the Legislative Assembly of a State

making Parliament are not in session is not in session, or where there is a
power with and the President is satisfied Legislative Council in a State, except
the that circumstances exist which when both Houses of the Legislature are
Executive necessitates taking of in session, the Governor is satisfied that
immediate action, he may circumstances exist which render it
promulgate Ordinance. It shall necessary for him to take immediate
have the same force and effect action, he may promulgate such
as an Act of Parliament, but Ordinances as the circumstances require.
every such Ordinance shall be It shall have the same force and effect as
laid before both Houses of an Act of the Legislature of the State
Parliament. It shall cease to assented to by the Governor. It shall be
operate at the expiration of six laid before the Legislative Assembly of
weeks from the reassembly of the State, or where there is a Legislative
Parliament, or, before the Council in the State, before both the
expiration of that period Houses, and shall cease to operate at the
resolution disapproving it are expiration of six weeks from the
passed by both Houses. It may reassembly of the Legislature, or if before
be withdrawn at any time by the the expiration of that period a resolution
President.(Article 123) disapproving it is passed by the
Legislative Assembly and agreed to by
the Legislative Council. It may be
withdrawn at any time by the
Governor.(Article 213)

Powers in Article 356 confers power on -

relation to the president to issue a
emergency Proclamation declaring that the
Government in a State cannot
be carried on in accordance
with the provisions of the
Constitution. Parliament may
confer on the President the
power of the Legislature of the
State to make laws. (Article
357)

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Interference of Executive in Judiciary

Type Interference of President in Interference of Governor in

Judiciary Judiciary

Power to Article 72 provides that the President The same power has been
Grant shall have the power to grant pardons, conferred on the Governor by
Pardon reprieves, respites or remissions of Article 161. The Governor of a
vested in the punishment or to suspend, remit or State shall have the power to
Executive commute the sentence of any person grant pardons, reprieves,
convicted of any offence in all cases respites or remissions of
where the punishment or sentence is punishment or to suspend, remit
by a Court Martial; where the or commute the sentence of any
punishment or sentence is for an person convicted of any offence
offence against any law relating to a against any law relating to a
matter to which the executive power of matter to which the executive
the Union extends; and where the power of the State extends.
sentence is a sentence of death.

Immunity to Article 361 provides that the President Article 361 provides that the
Executive shall not be answerable to any court for Governor of a State, shall not be
under Article the exercise and performance of the answerable to any court for the
361 powers and duties of his office or for exercise and performance of the
any act done or purporting to be done powers and duties of his office
by him in the exercise and or for any act done or purporting
performance of those powers and to be done by him in the
duties: Provided that the conduct of the exercise and performance of
President may be brought under review those powers and duties: No
by any court, tribunal or body criminal proceedings
appointed or designated by either whatsoever shall be instituted
House of Parliament for the against the Governor of a State,
investigation of a charge under Article in any court during his term of
61. No criminal proceedings office. No process for the arrest
whatsoever shall be instituted or or imprisonment of the the
continued against the President, in any Governor of a State, shall be
court during his term of office. No issued from any court during his
process for the arrest or imprisonment term of office.
of the President shall be issued from
any court during his term of office

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Role of Article 124(2) states that every Judge In the same manner, every
Executive in of the Supreme Court shall be Judge of a High Court is
appointment appointed by the President by warrant appointed by the President by
of Judges under his hand and seal after warrant under his hand and seal
consultation with such of the Judges of after consultation with the Chief
the Supreme Court and of the High Justice of India, the Governor of
Courts in the States as the President the State, and, in the case of
may deem necessary for the purpose. appointment of a Judge other
Provided that in the case of than the chief Justice, the chief
appointment of a Judge other than the Justice of the High court. [Article
chief Justice, the chief Justice of India 217(1)]
shall always be consulted.

Legislature in India and Doctrine of Separation of Powers

Type Union Parliament State Legislature

Composition Article 79 provides that Article 168 provides for Constitution of

there shall be a Legislatures in States. (1)For every State
Parliament for the Union there shall be a Legislature which shall
which shall consist of the consist of the Governor, and (a) in the
President and two States of Bihar, Maharashtra, Karnataka,
Houses to be known and Uttar Pradesh, two Houses; (b) in
respectively as the other States, one House. (2) Where there
Council of States and the are two Houses of the Legislature of a
House of the People. State, one shall be known as the
Legislative Council and the other as the
Legislative Assembly, and where there is
only one House, it shall be known as the
Legislative Assembly.

Function (Article Parliament has exclusive The Legislature of States has exclusive
245 and 246) power to legislate on power to legislate on matters enumerated
(Legislative matters enumerated in in List II i.e. State List. Both Parliament as
Procedure has List I i.e. Union List. well as State Legislature can legislate on
been dealt with Article 248 states that matters enumerated in List III i.e.
under Article Parliament has exclusive Concurrent List.
107 and 108) power to make any law
with respect to any matter
not enumerated in the
Concurrent List or State
List.

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Framing Rules Each House of The Legislature of a State may make

of Procedure Parliament may make rules for regulating its procedure and the
rules for regulating its conduct of its business, subject to the
procedure and the provisions of this Constitution. (Article
conduct of its business, 208)
subject to the provisions
of this Constitution.
(Article 118)

Interference of Legislature in Executive

Type Interference of President in Parliament

Role in election Article 54 provides that the President shall be elected by the members
of President of an electoral college consisting of the elected members of both
Houses of Parliament; and the elected members of the Legislative
Assemblies of the States.

Impeachment An impeachment is a quasi judicial procedure in Parliament. Either

Proceedings House may prefer the charge of violation of the Constitution before
against the other house which shall then either investigate the charge itself or
President cause the charge to be investigated. But the charge cannot be
carried on by preferred by a house unless – (a) a resolution containing the proposal
Parliament is moved after a 14 days notice in writing signed by not less than ¼ of
(Article 61) the total number of members of that house; and (b) the resolution is
then passed by a majority of not less than 2/3 of the total membership
of the house. The president shall have a right to appear and to be
represented at such investigation. If as a result of the investigation, a
resolution is passed by not less than 1/3 of the total membership of
the House before which the charge has been preferred declaring that
the charge has been sustained such resolution shall have the effect of
removing the President from his office with effect from the date on
which such resolution is passed.

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Council of Article 74(1) provides that there shall be a Council of Ministers with
Ministers to aid the Prime Minister at the head to aid and advise the President who
and advise shall, in the exercise of his functions, act in accordance with such
President advice. Provided that the President may require the Council of
Ministers to reconsider such advice, either generally or otherwise, and
the President shall act in accordance with the advice tendered after
such reconsideration. The similar provision of Council of Ministers to
aid and advise Governor has been made under Article 163. There
shall be a Council of Ministers with the Chief Minister at the head to
aid and advise the Governor in the exercise of his functions, except in
so far as he is by or under this Constitution required to exercise his
functions or any of them in his discretion.

Interference of Legislature in Judiciary

Type Constitutional Provisions Decision by Apex Court

Court not to Article 122 provides that the In Satish Chandra v Speaker, Lok
inquire into Court shall not call validity of Sabha (2014), It was held that the
proceedings of any proceedings in judicial review and interference with the
Parliament or Parliament in question on the powers of the speaker of Lok Sabha or
Legislature ground of any alleged Chairman of Rajya Sabha for taking
(Article 122 and irregularity of procedure. action against such Members of
212) Similarly, Article 212 provides Parliament for indulging in disruption is
that the Court should not not permissible being the sole
enquire into the proceedings prerogative of the Speaker
of the Legislature.

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Parliamentary Privileges are those rights In P.V. Narasimha Rao v State

privileges without which it would be (CBI/SPE) (2010), it was observed that
(Article 105 and impossible for either House to the object of the protection is to enable
194) maintain its independence of members to speak their mind in
action or the dignity of its Parliament and vote in the same way,
position. They may be divided freed of the fear of being made
into two groups i.e. firstly, answerable on that account in a Court
those which are enjoyed by of law. It is not enough that members
the members individually and should be protected against civil action
secondly, those belonging to and criminal proceedings, the cause of
each House of Parliament as action of which is their speech or their
a collective body. vote. To enable members to participate
fearlessly in Parliamentary debates,
members need the wider protection of
immunity against all civil and criminal
proceedings that bear a nexus to their
speech or vote. It is for that reason that
a member is not "liable to any
proceedings in any Court in respect of
anything said or any vote given by him.

Adjudication of Article 262 provides that The Supreme Court refused to interfere
water disputes Parliament may by law in the policy adopted by the State for
provide for the adjudication of allocation of water from Sardar Sarovar
any dispute or complaint with Project to the District of Kutch. It was
respect to the use, held that court has to exercise judicial
distribution or control of the restraint and not encroach upon
waters of, or in, any inter executive or legislative domain. It can
State river or river valley and interfere only if policy is inconsistent
Notwithstanding anything in with constitutional laws or arbitrary or
this Constitution, Parliament irrational. (Kachchh Jal Sankat Nivaran
may by law provide that Samiti v State of Gujarat, 2013)
neither the Supreme Court
nor any other court shall
exercise jurisdiction in
respect of any such dispute
or complaint

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Theme 7 : Federalism | CS Relations

WHEN? WHAT? WHY?

2013 Many State Governments further bifurcate KN, TL, MH, BR all
geographical administrative areas like Districts and created newer smaller
Talukas for better governance. In light of the above, districts carved out of
can it also be justified that more number of smaller larger administrative
States would bring in effective governance at State areas.
level? Discuss.

2013 Recent directives from Ministry of Petroleum and Context in question

Natural Gas are perceived by the `Nagas’ as a threat
to override the exceptional status enjoyed by the
State. Discuss in light of Article 371A of the Indian
Constitution.

2013 Constitutional mechanisms to resolve the inter-state final order issued by the
water disputes have failed to address and solve the Krishna Water Disputes
problems. Is the failure due to structural or process Tribunal
inadequacy or both? Discuss.

2013 Discuss the recommendations of the 13th Finance 14th FC was appointed
Commission which have been a departure from the in 2013.
previous commissions for strengthening the local
government finances.

WHEN? WHAT? WHY?

2014 Though the federal principle is dominant in Art 356 in Arunachal &
our Constitution and that principle is one of Uttarakhand, greater autonomy
its basic features, but it is equally true that demands by WB, TN, BR,
federalism under the Indian Constitution leans Delhi, Krishna Godavari Water
in favour of a strong Centre, a feature that Dispute, GST Implementation.
militates against the concept of strong
federalism. Discuss.

2015 The concept of cooperative federalism has Niti Aayog, 14th Finance
been increasingly emphasized in recent years. Commission, Sub Groups of
Highlight the drawbacks in the existing chief ministers, GST
structure and the extent to which cooperative
federalism would answer the shortcomings.

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2016 To what extent is Article 370 of the Indian Burhan Wani Killing Protests,
Constitution, bearing marginal note Curfew and shutdown, Political
“Temporary provision with respect to the conflict between regional and
State of Jammu and Kashmir”, temporary? central government
Discuss the future prospects of this provision
in the context of Indian polity.

2016 Discuss the essentials of the 69th The High Court declared that
Constitutional Amendment Act and the LG has "complete control
anomalies, if any that have led to recent of all matters regarding
reported conflicts between the elected National Capital Territory of
representatives and the institution of the Delhi, and nothing will happen
Lieutenant Governor in the administration of without the concurrence of the
Delhi. Do you think that this will give rise to LG"
a new trend in the functioning of the Indian
federal politics?

WHEN? WHAT? WHY?

2017 Explain the salient features of the GST

Constitution (One Hundred and First
Amendment) Act, 2016. Do you think it
is efficacious enough “to remove
cascading effect of taxes and provide for
common national market for goods and
services”?

2018 Whether the Supreme Court Judgement The court ruled that the LG cannot
(July 2018) can settle the political tussle act independently and must take the
between the Lt. Governor and elected aid and advice of the Council of
government of Delhi? Examine. Ministers

2019 From the resolution of contentious issues 15th FC : Reexamination of CSS

regarding distribution of legislative (Current Categorisation to expire in
powers by the courts, ‘Principle of 2020; Delhi Statehood and subject
Federal Supremacy’ and ‘Harmonious issues; SC judgement on conflict
Construction’ have emerged. Explain. between Customs Act and Art
Treasures Act

2020 How far do you think cooperation, Art 370, CAA 2019, NIA Act, GST,
competition and confrontation have SDG India Index, Aspirational
shaped the nature of federation in India? Districts Program

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 Magna Carta Mains 2024: Crash Course for GS Paper II: Atish Mathur

Cite some recent examples to validate

your answer.

WHEN? WHAT? WHY?

2020 Indian constitution exhibits centralising tendencies to COVID 19; context in

maintain unity and integrity of the nation. Elucidate in question
the perspective of the Epidemic Diseases Act, 1897;
The Disaster Management Act, 2005 and recently
passed Farm Acts.

2021 The jurisdiction of the CBI regarding lodging an FIR CBI investigation
and conducting probe within a particular state is being without state consent.
questioned by various states. However, the power of
states to withhold consent to CBI is not absolute.
Explain with special refernce to the federal character of
India.

2021 How have recommendations of the 14th Finance -

Commission of India enabled the states to improve
their fiscal position?

2023 Account for the legal and political factors responsible Parliamentary
for the reduced frequency of using Article 356 by the Discussion in Feb,
Union Governments since mid 1990s almost 30 years of SR
Bommai

2023 Explain the significance of the 101st Constitutional 5 years* of GST, GST
Amendment Act. To what extent does it reflect the Council in news
accommodative spirit of federalism?

1. What is federalism?
2. What is India’s model?
3. Why did India choose quasi federalism?
4. How is India different from US?
5. Legislative Relations - Basics and SC Cases plus overview of emergencies
6. Admin Relations - Basics and SC Cases
7. Financial Relations - Basics and SC Cases
8. How is Centre stronger than states?
9. How are states retraining some autonomy?
10. Case Analysis - SR Bommai (1994)

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 Magna Carta Mains 2024: Crash Course for GS Paper II: Atish Mathur

11. Some contemporary issues - 6th Schedule, Special Packages, Delhi v Centre, inter state
water disputes - what is the issue, what does it reflect, how can it be solved
12. Vertical and Horizontal Asymmetric Federalism - Meaning, Examples, Conflict, Way
Forward
13. Cooperative, Competitive, Confrontational Federalism - Meaning, Examples, Conflict,
Way Forward

Federalism & Centre-State Relation

What is Federalism: -
● Definition:
i. Federalism refers to a system of government in which power is
divided between a central authority and various constituent units, such
as states or provinces.
ii. Usually, a federation has two levels of government. One is the government for
the entire country that is usually responsible for a few subjects of common
national interest. The others are governments at the level of provinces or states
that look after much of the day-to-day administering of their state. Both these
levels of government enjoy their power independent of the other.
iii. Federalism gives a basic understanding of diversity and autonomy of regional
power.

● General characteristics of Federalism:

i. Division of power: Federalism divides power between a central government
and regional governments, with each level having its own specific
responsibilities and areas of authority.
ii. Supremacy of Constitution: In majority of cases, federalism is based on
a written Constitution that defines the powers and responsibilities of the
central and regional governments and establishes a system of checks and
balances to ensure that neither level of government becomes too powerful.
iii. Independent judiciary: Federalism typically includes an independent
judiciary that can interpret the Constitution and resolve disputes between
different levels of government.
iv. Bicameral legislature: Federalism often features a bicameral legislature, with
one chamber representing the people and the other representing the regional
governments.
v. Flexibility: Federalism allows for flexibility in the sharing of powers between
central and regional governments and allows for adjustments as circumstances
change.

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What is India’s Model of Federalism: -

● The nature of Indian Federalism is highly debated:
i. K.C Wheare said India is quasi-federal i.e., a unitary state with subsidiary
federal principles.
ii. Ivor Jennings said that India is a federation with strong centralising tendency.
iii. Granville Austin mentioned Indian federalism as ‘Cooperative federalism’
creating synergy between government by distributing essential powers and
responsibilities between Centre and the State.

● Evolution of Indian Federalism:

i. Federalism in pre-independent India
a. The current federal system in India has its roots in the Simon
commission report (1930).
b. The support for the federal form of government for India gained
further strength during the First Round Table Conference in 1930.
c. At the close of the Conference, the British Government officially
accepted the principle that the form of the new Government of India
was to be an All- India Federation embracing British India and the
Princely States.
d. Later, the Government of India Act 1935 set forth the major outlines
of the federal system of government as finally evolved by the
Constituent Assembly which framed the present Constitution of the
Republic of India.
e. In the end, the implementation of the provisions of the Act dealing
with federalism was never achieved and did not become operative.
However, the provisions dealing with the provinces were placed in
operation and became effective in 1937.
f. The Constituent Assembly which convened in 1946, officially
endorsed the principle of federalism as the structure of the new India
when it supported the Resolution offered by Pandit Nehru, which
supported the idea of a strong autonomous province and
relatively weak Centre.
g. Later, this concept was altered upon the recommendation of the Union
Powers Committee, which recommended that the residuary
powers of Government be vested in the Centre rather than in the
States.
h. Therefore, at the time of independence in 1947, India was a highly
centralized and unitary state, with the central government holding
most powers and the states having very limited autonomy.
ii. Federalism in Post-independent India:
a. In the 1960s and 1970s, federalism in India faced several challenges,
including the rise of regional and linguistic identity politics, which

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led to the creation of new states and the emergence of powerful

regional parties.
b. This period also saw the Proclamation of National Emergency and the
central government's intervention in state affairs through the
imposition of the President's rule and the use of financial incentives
and sanctions to influence state policy.
c. In the 1980s and 1990s, the decentralization of power and
the devolution of financial resources to the states became an important
policy goal, and several initiatives were undertaken to empower the
states and strengthen federalism. The 73rd and 74th
Constitutional amendments were an important step in this direction.
d. However, this process has not been without challenges, and there have
been tensions between the central and state governments on issues such
as revenue sharing and the allocation of resources.
e. In recent years, federalism in India has faced additional challenges,
including the COVID-19 pandemic, which has highlighted the
importance of coordination between the central and state governments
in responding to crises and addressing the needs of the people.

● Significance of Indian model of Federalism:

a. Accommodation of diversity: Federalism in India allows for the
accommodation of diversity by giving autonomy to states to govern
their own affairs and address their unique needs and concerns.
b. Effective governance: A robust federal structure needs to be in place
to deliver effective governance and to ensure that the diverse needs and
interests of the states are represented in the decision-making process.
c. Promotion of democracy: Federalism promotes democracy by
ensuring that power is decentralized and shared between different
levels of government. This allows for greater participation and
representation of citizens in the decision-making process.
d. Protection of rights: Federalism allows for more robust protection of
individual and minority rights as state governments are better able to
address the specific needs and concerns of their diverse populations
and can tailor policies and legislation accordingly.

● Federal features of the Indian constitution: Indian Constitution establishes dual

polity ( Article 1 read with Part V and Part VI) and the division of powers between
them ( Article 246 read with the 7th Schedule) . The states have the same authority
over the state list during ordinary times as the union has over the union list. Part
VI of the Indian Constitution provides for the states of the Indian Union with
independent constitutional existence.

Article 1 India, that is Bharat, shall be a union of states.

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Article 79 Parliament is constituted with two chambers, namely the Lok

Sabha and the Rajya Sabha. The Rajya Sabha is designed to function
as a representative body for the states in the Indian federal system.
Article 131 The Supreme Court in India is independent and is the sole arbitrator of
disputes between federal constituents of the centre and states.
Article 246 Distribution of legislative subjects between the Union and the State
governments, listed under the union, the state, and the concurrent list.
Article 368 Provides for 2 types of amendment processes, making the Constitution
of India a unique mixture of rigidity and flexibility. Also, the federal
provisions of the Constitution can be amended with the concurrence of
at least half of the state legislatures.

Why did India choose ‘Quasi-federalism’: -

● India's federal structure was designed to be flexible, allowing the Union and State
governments to be interdependent. This flexibility was necessary to accommodate the
country's vast diversity and ensure that the central government could step in when
needed to maintain order and implement national policies effectively. Hence, India's
choice of quasi-federalism, is defined as a system that combines elements of both
federal and unitary governance, and was chosen pertaining to several historical,
social, and economic factors.
● Historical Context:
o The partition of India in 1947 created a precarious situation, with the newly
formed nation facing significant communal tensions and the threat of further
fragmentation. The leaders of independent India, including members of the
Constituent Assembly, believed that a strong central government was essential
to maintain national unity and integrity. This led to the adoption of a
quasi-federal structure where the central government retained significant
powers to manage crises and ensure stability.
● Social Context:
o India's society was highly hierarchical and discriminatory at the time of
independence. The framers of the Constitution aimed to forge a national civic
identity that could transcend local and regional loyalties. A centralized federal
structure was seen as a means to unsettle entrenched social hierarchies and
promote social justice and equality across the country.
● Economic Context:
o The goal of building a welfare state necessitated a centralized approach to
redistributive policies. In a decentralized federal system, smaller and more
dominant groups could potentially thwart redistributive efforts. A strong
central government was better positioned to implement universal rights-based
policies and ensure equitable distribution of resources.
o Economic disparities between different regions of India were significant. A
centralized federal structure allowed for more coordinated economic planning
and intervention to reduce these inequalities. This approach was also
influenced by India's commitment to international labor standards and
socio-economic rights, as reflected in documents like the Nehru Report (1928)
and the Bombay Plan (1944).
● Administrative and Functional efficiency:

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o The quasi-federal structure facilitated national integration by allowing the

central government to address separatist tendencies and regional conflicts
effectively. Provisions like Article 356, which allows for the imposition of
President's rule in states, were included to manage such challenges.
o A quasi-federal system enabled better coordination of national programs and
policies. For example, during the COVID-19 pandemic, the central
government played a crucial role in allocating resources like oxygen to
different states based on their needs. Similarly, the introduction of the Goods
and Services Tax (GST) created a single market economy, simplifying tax
structures and promoting economic integration.

How is Indian federalism different from American federalism: -

India United States of America
Nature of Federalism Indian federalism is often described American federalism is more
as quasi-federal or cooperative rigid and decentralized. It is
federalism. It combines both characterized by a clear division
federal and unitary features, with a of powers between the federal
stronger central government. This government and the states, with
means that while states have their each level of government
own powers, the central operating independently within
government retains significant its own sphere of influence. This
authority, especially in times of system is designed to prevent
emergency or national interest. excessive centralization of power.
Constitutional Structure The Indian Constitution is detailed The U.S. Constitution is concise
and lengthy. It has been amended a and rigid, with only 27
lot many times since its inception amendments since 1789. The
in 1950, reflecting its flexibility amendment process is
and adaptability to changing deliberately difficult, ensuring
circumstances. that changes are carefully
considered and broadly
supported.
Division of Powers Powers are divided into three lists: The U.S. Constitution delineates
the Union List, the State List, and specific powers to the federal
the Concurrent List. The central government, with all remaining
government has more authority, powers reserved for the states.
especially in areas listed under the This creates a more balanced
Union List. In cases of conflict, division of authority, with states
central laws prevail over state laws having significant autonomy in
in the Concurrent List. many areas.

Legislative Structure India has a parliamentary system The U.S. has a presidential
with a bicameral legislature system with a bicameral
consisting of the Lok Sabha (House legislature consisting of the
of the People) and the Rajya Sabha House of Representatives and the
(Council of States). The Lok Sabha Senate. The Senate is the more
is more powerful, and its members powerful upper house, with each
are directly elected by the people state having equal representation
regardless of population size
Citizenship India practices single citizenship, The U.S. allows dual citizenship,
meaning that all citizens are subject enabling citizens to hold
to the same set of laws and rights, citizenship in both the federal

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regardless of the state in which they government and their respective

reside states, which can lead to
variations in rights and
responsibilities between states
Flexibility and Amendment The Indian Constitution is more The U.S. Constitution is more
Process flexible, allowing for relatively rigid, with a stringent amendment
easier amendments. This flexibility process that requires broad
enables the central government to consensus. This rigidity ensures
adapt to changing political, social, stability but can make it
and economic conditions more challenging to adapt to new
readily circumstances
Central Government Authority The central government in India The U.S. federal government has
has significant authority over the limited direct intervention in state
states, including the power to affairs. States enjoy a high degree
impose President's Rule in a state of autonomy, and the federal
under certain conditions. This system is designed to protect
central dominance is a key feature state sovereignty
of India's quasi-federal structure
Legislative Relations between Centre and State: -
● Overview: Centre-State Relations, particularly Legislative Relations, form an
integral part of India’s federal structure as delineated in Part XI of
the Constitution (Articles 245-255). These provisions detail the scope of authority
for both levels of government, specifying areas where each can legislate, and also
provide mechanisms for resolving conflicts that may arise between them. This
framework plays a crucial role in ensuring effective governance and cooperation
between the Centre and the States in India.
● Territorial Extent of Central and State Legislation:
i. Territorial Jurisdiction: Parliament and State legislature can make laws
for the whole or any part of the territory of India and State, respectively.
ii. Extraterritorial Legislation: (Indian citizens and their property in any part of
the world) = By Parliament alone.
iii. Constitutional Restrictions: On the territorial jurisdiction of the parliament:
o Powers of the President over Union Territories: The President can make
regulations for the peace, progress and good governance of the UTs –
▪ It has the same force and effect as an act of Parliament.

▪ It may also repeal or amend any act of Parliament in relation to

these union territories.
o Scheduled Area: Governor is empowered to direct that an act of Parliament
does not apply to a Scheduled Area in the state or apply with specified
modifications and exceptions.
o Tribal Area: Governor of Assam may likewise direct that an act of
Parliament does not apply to a Tribal Area (autonomous district) in the
state or apply with specified modifications and exceptions.
▪ The President enjoys the same power with respect to Meghalaya,
Tripura and Mizoram.
● Distribution of Legislative subjects:
i. The constitutional framework of India delineates a three-tiered distribution of
legislative powers between the central and state governments through the

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categorisation of subjects into three distinct lists in the Seventh Schedule: the
Union List, the State List, and the Concurrent List.
ii. Within this structure, the Parliament of India exercises jurisdiction over
legislative matters specified in the Union List, encompassing domains such as
defense, banking, communication, trade, auditing, and foreign affairs among
many others. (97 (Present – 98) entries).
iii. In contrast, state legislatures are vested with the authority to legislate on
matters pertaining to the maintenance of law and order, public health and
sanitation, agriculture, police, and other issues outlined in the State List. (66,
Present -59 entries).
iv. Furthermore, both the Parliament and state legislatures retain legislative
competence over subjects detailed in the Concurrent List, including criminal
law, civil procedure, marriage, divorce, population control, electricity, social
planning, and drug regulation to name a few. (47 (Present -52) entries).
v. Residuary Subjects: The power to make laws with respect to residuary
subjects(i.e., the matters which are not enumerated in any of the three lists) is
vested in the Parliament. This residuary power of legislation includes the
power to levy residuary taxes.
vi. In case there is an overlap between laws formulated by the Parliament and the
state legislatures over a subject matter mentioned in the Concurrent list, the
first approach would be to read the laws in a harmonious manner. This means
that the laws would be read in a manner that avoids conflict and promotes their
concurrent operation (Rule of Harmonious construction). The Constitution
grants primacy to the Union List over the State List and Concurrent List, with
the Concurrent List holding precedence over the State List in cases of
overlapping jurisdiction. Thus, in instances of conflict between the central and
state governments, precedence is afforded to the former. (Union list >
Concurrent list > State list). But there is an exception, If the state law has been
reserved for the consideration of the president and has received his assent, then the
state law prevails in that state. (Article 200).
vii. 101st CAA, 2016: Parliament/ state legislature has the power to make laws
with respect to goods and services tax imposed by the Union/
State. Parliament has exclusive power to make laws concerning goods and
services tax where the supply of goods or services or both takes place in the
course of inter-state trade or commerce.
● Power of the Parliament to make laws on subjects mentioned in the State List:
The Indian Constitution confers upon the Parliament the authority to legislate on
subjects enumerated in the State List under specific and extraordinary circumstances.

Article If the Rajya Sabha passes a resolution by a majority of two-thirds of its members requesting Parliament to make law on
249 a subject of State List.
Article Parliament to make laws on any State List subjects during a national emergency. However, the Parliament’s laws under
250 this provision will cease to operate on the expiration of six months of the emergency.
Article If two or more States’ legislatures request Union Parliament through a resolution to make a law on a particular
252 subject mentioned in the State List.
Article Parliament to make law for the whole or any part of India’s territory for implementing any treaty, international
253 agreement or convention with any other country.
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Article During the proclamation of President’s Rule in a State, the Union Parliament makes the laws over the subjects
356 included in the State List.

1. Resolution by the Rajya Sabha: In instances where the Rajya Sabha passes a
resolution necessitating parliamentary legislation in areas such as GST, the
Parliament is empowered to enact laws in these domains with a two-thirds
majority vote.
2. National Emergency: Legislative enactments during a National Emergency
come into effect six months following the termination of the emergency.
3. State Request: Upon receiving a joint request from two or more states regarding
a common issue, Parliament may enact laws to regulate these matters, applicable
to the states making the request. The law applies only to those states which have
passed the resolutions. Any other state may adopt later by passing a resolution
to that effect. Surrender of the Power: Law can be amended or repealed only by
the Parliament. The state legislature ceases to have the power to make a law with
respect to that matter.
4. Implementation of International Agreements: Parliament holds the mandate to
enact laws to fulfil international commitments and obligations stemming from
treaties, conventions, and agreements.
5. President’s Rule: Even during the imposition of President’s Rule in a state,
Parliament retains the prerogative to legislate on state matters. Such laws remain
effective beyond the duration of President’s Rule and may be modified or
re-enacted by the state legislature.
● Legislative relations between Centre-state during emergency:
The Indian Constitution provides a detailed framework for the relationship between
the Centre and the States, particularly during times of emergency. These provisions
are outlined in Part XVIII of the Constitution, covering Articles 352 to 360. The
emergency provisions are designed to allow the Central Government to take swift and
decisive action during crises, but they also significantly alter the usual balance of
power between the Centre and the States.
i. Types of Emergencies:
a. National Emergency (Article 352)
b. President's Rule (State Emergency) (Article 356)
c. Financial Emergency (Article 360)
ii. Impact on Legislative Relations: During an emergency, the legislative
relations between the Centre and the States undergo significant changes,
which are outlined below:
a. National Emergency (Article 352)
1. Central Dominance: When a National Emergency is declared, the
Centre assumes greater control over the States. The Parliament gains
the power to legislate on any subject, including those in the State List.
This means that the usual division of legislative powers is overridden,
and the Centre can make laws that would normally fall under State
jurisdiction.
2. State Legislature's Role: The State legislatures continue to function,
but their legislative powers are subject to the overriding authority of
the Parliament. Any law made by the State legislature can be
overridden by a law made by the Parliament during the emergency.
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3. Duration and Approval: The proclamation of a National Emergency

must be approved by both Houses of Parliament within one month and
can be extended indefinitely with periodic approvals every six months.
b. President's Rule (Article 356):
1. Suspension of State Government: When President's Rule is imposed,
the State government is either dissolved or suspended. The legislative
powers of the State are assumed by the Parliament, and the President
can make laws for the State.
2. Governor's Role: The Governor of the State administers the State on
behalf of the President. The legislative assembly of the State may be
dissolved or kept in suspended animation.
3. Duration and Approval: President's Rule must be approved by both
Houses of Parliament within two months and can be extended for up to
three years with periodic approvals every six months.
c. Financial Emergency (Article 360):
1. Financial Control: During a Financial Emergency, the Centre gains
control over the financial matters of the States. The President can issue
directions to States to observe financial propriety and can reduce the
salaries of all government officials, including judges of the High
Courts and the Supreme Court.
2. Duration and Approval: The proclamation of a Financial Emergency
must be approved by both Houses of Parliament within two months
and remains in force until it is revoked by the President.

iii. Key Articles Affecting Legislative Relations During Emergency:

Article 250 During a National Emergency, the Parliament can legislate on subjects in the State List.
Article 353 Specifies the effect of a proclamation of emergency, giving the Centre the power to direct the States on the manner in
which their executive power is to be exercised.
Article 356 Allows the President to assume all or any of the functions of the State government and the powers vested in the Governor
or any other State authority.
Article 360 Empowers the President to direct States to observe financial propriety during a Financial Emergency.

iv. Judgements: Centre-State Legislative relationship:

A.H. Wadia v. Commissioner of Income Tax (1949) The Supreme Court held that: the state legislature cannot
make extra-territorial laws except when there is sufficient
connection between the state and the subject matter of
Legislation.
State of Bombay v. R.M.D.C (1957) The Supreme Court held that: extra-territorial laws can be
upheld only when there is a sufficient nexus between the
object sought to be achieved and the state seeking to
achieve them. The connection must be real and not
illusionary.
Javed v. State of Haryana (2003) The Supreme Court held that: the constitution gives
autonomy to the centre and the states within their
respective fields. The legislation of one state cannot be
held to be discriminatory against its citizens simply
because Parliament or State Legislatures of other states
have chosen not to enact similar laws.
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R.D. Joshi v. Ajit Mills (1977) The Supreme Court held that: the entries in the list (7th
Schedule) must be given wide meaning implying all
ancillary and incidental powers.
Prafulla Kumar v. Bank of Commerce, Khulna (1947) The court held that: a clear-cut distinction is not possible
between the legislative powers of the Union and the State
legislature because they are bound to overlap. In
ascertaining the pith and substance of the act, the court
must consider: The object of the Act, the scope of the Act
and the effect as the whole.
State of Bombay v. F.N. Balsara (1951) The court held that the Bombay Prohibition Act, is valid
because the pith and substance of the Act fell in State List
even though it incidentally encroached upon the Union
List.
G.V.K. Industries v. Income Tax Officer (2011) The Supreme Court held that: any law enacted by the
Parliament with respect to ‘extra-territorial’ aspects or
causes which have no impact on or nexus with India would
be ultra vires to Article of the Constitution.
The Secretary of Govt. of Kerala Irrigation Department The Supreme Court held that: when the legislative
And Ors. v. James Varghese And Ors. (2022) competence of a state legislature is questioned on the
ground that it encroaches upon the legislative competence
of the parliament, the doctrine of pith and substance has to
be applied to determine as to which entry does a given
piece of legislation relates to. Incidental and superficial
encroachment are to be disregarded.
State of Rajasthan v. Ashok Khetoliya (2022) The Supreme Court held that: since the local government
falls in Entry-5 of List II, of the 7th Schedule, therefore it is
the State Legislature alone which is competent to legislate
in respect of the municipalities with only one limitation
that the provisions of the State Act cannot be inconsistent
with the mandate of the scheme of Part IXA of the
constitution.

Administrative relations between Centre and State: -

Administrative Relations, as outlined in Part XI of the Indian Constitution (Articles
256-263), governs the interactions and cooperation between the central government and
the state governments in administrative matters. These articles delineate the roles,
responsibilities, and powers of both levels of government regarding administrative
functions, including the implementation of laws and policies. Administrative relations can be
categorised as under:
● Distribution of Executive Power:
i. Coextensive with legislative powers, except in a few cases. However, laws on
concurrent lists are executed by states except when a Constitutional
provision or a parliamentary law specifically confers it on the Centre.
● The Obligation of States and the Centre:
I. Article 256: Power of state should be exercised to ensure compliance to laws
of the Parliament and GOI can also give direction for that.
II. Restrictions on State Executive Power: Two restrictions on the executive
power of the states:
a. To ensure compliance with the laws made by the Parliament
b. Not to impede or prejudice the exercise of executive power of the
Centre.
III. Article 365: Says that where any state has failed to comply with (or to give
effect to) any directions given by the Centre, the President’s rule may be
applied.
● Centre’s Directions to the States (Art. 257):
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I.
The Centre is empowered to give directions to the states with regard to:
a. Construction and maintenance of means of
communication (declared to be of national or military
importance) by the state.
b. Protection of the railways within the state.
c. Adequate facilities for instruction in the mother tongue at the
primary stage of education to children belonging to linguistic
minority groups in the state; and Drawing up and execution of
the specified schemes for the welfare of the Scheduled
Tribes in the state.
II. Application of Coercive Sanction: The coercive sanction behind the Central
directions under Article 365 (mentioned above) is also applicable in these
cases.
● Mutual Delegation of Functions:
I. Nature of Mutual Delegation: To decrease rigidity and prevent a deadlock,
the constitution permits intergovernmental delegation of executive authorities.
With the state government’s approval, the president may delegate the union’s
executive functions to it. The governor may delegate the executive
responsibilities of the state to the union with the approval of the federal
government. This mutual delegation of administrative functions may
be conditional or unconditional.

II. Mechanisms for Mutual Delegation: Mutual delegation of functions between

the Centre and the states can occur through either agreement or legislation.

a. Centre vs. States: While the Centre has the option to employ both
methods, states are limited to utilizing only the former.
III. The constitution also permits the state to provide the union executive authority
without the state’s consent. But such delegations are made by Parliament, not
by the President. The executive authority of a state, however, cannot be
transferred in the same manner.

● Cooperation Between Centre and States:

I. Parliament has the authority to rule on any dispute or grievance involving the
use, distribution, and management of any interstate river’s and river valleys’
water resources.
II. The President has the power to convene an inter-state council to examine and
deliberate on subjects of common interest between the centre and the states.
III. In order to carry out the constitutional requirements relating to interstate trade,
commerce, and intercourse, Parliament has the authority to designate the
proper authorities.

Other Instances of ‘Centre State Administrative relationship’:

● All India Services (Art 312)

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I. Article 312: Constitution authorizes the Parliament to create new All-India

Services (AIS) on the basis of a Rajya Sabha resolution.
II. Joint Control: AIS are controlled jointly by the Centre and the states.
o The ultimate control lies with the Central government while the
immediate control vests with the state governments.

● Public Service Commissions

I. Appointment of Members of SPSC: The Chairman and members of an

SPSC are appointed by the governor of the state and can be removed only
by the President.
II. Joint State Public Service Commission: Parliament can establish a JSPSC
for two or more states on the request of the state legislatures concerned.
o Chairman and members of the JSPSC are appointed by the President.
III. UPSC Support to State: UPSC can serve the needs of a state on the
request of the state governor and with the approval of the President.
IV. Joint Recruitment: UPSC assists the states (when requested by two or more
states) in framing and operating schemes of joint recruitment for any
services for which candidates possessing special qualifications are required.

● Integrated Judicial System

I. No dual system of administration of justice. Established an integrated

judicial system with the Supreme Court at the top and the state high courts
below it.
II. Common High Courts: Parliament can establish a common high court for
two or more states. Example: Kerala and Lakshadweep at Kerala;
West-Bengal and Andaman & Nicobar islands at Kolkata High court; Punjab,
Haryana & Chandigarh at Punjab and Haryana High Court.

● Relations During Emergencies

I. National Emergency (Art.352): The Centre becomes entitled to give

executive directions to a state on ‘any’ matter.
II. President’s Rule (Art. 356): The President can assume to himself the
functions of the state government and powers vested in the Governor or any
other executive authority in the state.
III. Financial Emergency (Art. 360): The Centre can direct the states to
observe canons of financial propriety and can give other necessary directions
including the reduction of salaries of persons serving in the state.

● Judgements: Centre-State administrative relationship:

State of Rajasthan v. Union of India (1977) The High Court ruled that the central government can give direction to the state
government if the state government is acting in contrary to the provisions of law.
Ram Jawaya Kapur v. State of Punjab (1955) The Supreme Court held that both the central government and state government
shall exercise their respective powers within their jurisdiction and their limits.

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Rameshwar Oraon v. State of Bihar and Ors. (1955) The state government is obliged to act in accordance with the rules laid down by
the central government.
State of Karnataka v. Union of India and Anr. The Supreme Court held that both the central government and state governments
(1978) must respect their statutory provisions.
Swaraj Abhiyan v. Union of India (2017) The court stated that the central government has the power to give any directions
to the state government.
"The legal right of the States consists in their immunity, in the sense of freedom
from the power of the-Union Government”.

Financial relations between centre and state: -

Centre State Financial Relations, delineated in Part XII of the Indian Constitution (Articles
264-293), govern the distribution of financial resources and responsibilities between the
central and state governments. These provisions outline mechanisms for revenue
sharing, taxation powers, grants-in-aid, and other financial matters. The goal is to
ensure fiscal autonomy for states while also maintaining financial
stability and equity across the country. These relations play a crucial role
in fostering cooperative federalism and ensuring the effective functioning of the Indian
federal system.
● Article 265: Taxes not to be imposed except by authority of law
● Allocation of taxation powers
o Union List/State List: Parliament/state legislature has exclusive power to
levy taxes on subjects enumerated in the Union/State List.
o Residuary Power: The residuary power is vested in the Parliament. Under
this provision, the Parliament has imposed gift tax, wealth tax and
expenditure tax.
o Concurrent List: There are no tax entries in the Concurrent List i.e., the
concurrent jurisdiction is not available with respect to tax legislation.
● Concurrent Powers for GST Legislation: However, The 101st Amendment Act of
2016has made an exception by making a special provision with respect to GST.
o This Amendment has conferred concurrent power upon Parliament and State
Legislatures to make laws governing GST.

● Constitutional Restrictions on state’s taxation power: The power to tax

occupations, trades, callings, and professions belongs to the state legislature. Taxes on
the sale or purchase of products can be imposed by a state (other than a newspaper).
However, The following factors restrict the state’s capacity to impose a sales tax:
i. Sales and purchases made outside of the states are exempt from
taxation.
ii. Sales or purchases done during the import or export process are exempt
from taxation.
iii. No tax may be levied on a transaction or purchase made during
interstate trade or commerce.
iv. A tax imposed on goods sold or bought that the Parliament has
determined are of particular importance to interstate trade and
commerce is subject to the limitations and specifications set forth by the
Parliament.

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● Electricity used by or sold to the centre, as well as electricity used in the building,
upkeep, or operation of any railway by or sold to the railway company for the same
purpose, are exempt from state taxes.

● A state may charge a price for the water or electricity it sells to an interstate river
authority that Parliament established to manage and develop the river. On the other
hand, a law that receives the approval of the President may enact such an imposition.

● Constitutional Distinction: The Constitution along with some restrictions on the

taxing power of the states, also draws a distinction between the power to levy and
collect a tax and the power to appropriate the proceeds of the tax so levied and
collected.

● Distribution of Tax revenue:

i. Taxes are levied by the centre, but they are collected and used by the state
(Article 268). The state’s consolidated fund receives the proceeds from this
and holds them there. One illustration would be taxes imposed on goods
purchased or sold in interstate commerce. Although the federal government
imposes and collects taxes, they are divided between the federal government
and the states (Article 270). This category includes all taxes, with the
exception of the ones mentioned above, surcharges, and cess. Based on the
Finance Commission’s recommendations, the President determines how these
taxes are divided. The tax and levies surcharges mentioned in Articles
269 and 270 may be enacted at any time by Parliament. Proceeds from the
surcharge are only used for the centre.
ii. State-imposed gathered, and held-back taxes consist of:

a. These are the taxes that fall under the purview of the states
only.

b. They are listed on the state list.

c. Agriculture income taxes, Alcohol excise taxes,

Profession-specific taxes, Ceilings, etc.

● Distribution of Non-tax Revenues

o Major Sources of Non-tax Revenues of the Centre: (i) posts and
telegraphs; (ii) railways; (iii) banking; (iv) broadcasting (v) coinage and
currency; (vi) central public sector enterprises; (vii) escheat and lapse;19 and
(viii) others.
o Major Sources of Non-tax Revenues of the States: (i) irrigation; (ii) forests;
(iii) fisheries; (iv) state public sector enterprises; (v) escheat and lapse; and
(vi) others
State’s ‘Grant in aid’: Grants-in-aid are payments in the nature of assistance, donations or
contributions made by one government to another government, body, institution or individual.

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Grants-in-aid are given by the Union Government to State Governments and/or Panchayati
Raj Institutions. Union Government also gives substantial funds as grants-in-aid to other
agencies, bodies and institutions. Similarly, the State Governments also disburse grants-in-aid
to agencies, bodies and institutions such as universities, hospitals, co-operative institutions
and others. The grants so released are utilized by these agencies, bodies and institutions for
meeting day-to-day operating expenses and for creation of capital assets, besides delivery of
services. State grants-in-aid are permitted by the Constitution to come from the federal
government. The two types of grants-in-aid are: (1) statutory grants and (2) discretionary
grants.
Statutory Grants Discretionary Grants
● Art 282: Empowers both the Centre and
the states to make any grants for any
● Art. 275: Grants to the states which are in need of financial
public purpose, even if it is not within
assistance and not to every state.
their respective legislative competence.
● Charged on the Consolidated Fund of India every year.
● These grants forms the larger part of
the Central grants to the states
● These grants are also known as
● The Constitution also provides for specific grants for
discretionary grants, the reason being
promoting the welfare of the scheduled tribes in a state or
that the Centre is under no obligation
for raising the level of administration of the scheduled
to give these grants and the matter lies
areas in a state (including the State of Assam).
within its discretion.
● These grants are to help the state
financially to fulfil plan targets and to
● The statutory grants under Art. 275 are given to the states on
give some leverage to the Centre to
the recommendation of the Finance Commission.
influence and coordinate state action to
effectuate the national plan.
● The Constitution also provided for a third type of grants-in-aid, but for a temporary
period. A provision was made for grants in lieu of export duties on jute and jute
products to the States of Assam, Bihar, Orissa and West Bengal.
Other Grants ● These grants were to be given for a period of ten years from the commencement of the
Constitution.
● These sums were charged on the Consolidated Fund of India and were made to the
states on the recommendation of the Finance Commission.
Following bills can be introduced in the Parliament only on the recommendation of
the President (Art.274):
● Bill which imposes or varies any tax or duty in which states are interested;
● Bill which varies the meaning of the expression “agricultural income”;
● Bill which affects the principles on which money are or may be distributable to states;
● Bill which imposes any surcharge on any specified tax or duty for the purpose of the
centre.

Protection of the “Tax or duty in which states are interested”:

State’s interest
● A tax or duty the whole or part of the net proceeds whereof are assigned to any state; or
● A tax or duty by reference to the net proceeds where of sums are for the time being
payable, out of the Consolidated Fund of India to any state.

Net Proceed (Art. 279): The proceeds of a tax or a duty – the cost of collection.

● It is ascertained and certified by the CAG. His certificate is final.

● Centre (Art. 292) ● State (Art. 293)
● Can borrow on CFI (Within + ● Cannot raise any loan without centre
Borrowing by the Outside India) within limits fixed by consent (If there is an outstanding loan
Centre and the parliament. to centre)
States ● Can make loans to any state or give ● Can borrow on CFS (Within not
guarantees in respect of loans raised outside India) within limits fixed by
by any state. parliament
Exemption of ● Centre’s property is exempted from all taxes imposed by a state or any authority within
Union property a state like municipalities, district boards, panchayats and so on. But the Parliament is
from taxation of empowered to remove this ban.
state ● The property may be used for sovereign (like armed forces) or commercial purposes.

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● The corporations or the companies created by the Central government are not
(Art. 285) immune (as they are separate legal entities) from state taxation or local taxation.
● The property and income of a state is exempted from Central taxation. Such income may
be derived from sovereign functions or commercial functions.
Exemption of State ● But the Centre can tax the commercial operations of a state if Parliament provides so.
property from ● The property and income of local authorities situated within a state are not exempted
central taxation from Central taxation.
● Likewise, the property or income of corporations and companies owned by a state can be
taxed by the Centre.
(Art.289) ● The Centre can impose customs duty on goods imported or exported by a state, or an
excise duty on goods produced or manufactured by a state – advisory opinion of the
Supreme Court, 1963.
National Emergency (Art. 352) Financial Emergency (Art. 360)
● The President can modify the ● Centre can give directions to the
constitutional distribution of revenues states:
between the Centre and the states. ● To observe the specified canons of
● Can either reduce or cancel the financial propriety.
Effects of
transfer of finances (both tax sharing ● To reduce the salaries and
Emergency
and grants-in-aid) from the Centre to allowances of all class of persons
the states. serving in the state; and
● Such modification continues till the ● To reserve all money bills and other
end of the financial year in which the financial bills for the consideration of
emergency ceases to operate. the President.

● Goods and Services Tax Council:

The smooth and efficient administration of the goods and services tax ( GST ) requires
cooperation and coordination between the Centre and the States. In order to facilitate this
consultation process, the 101st Amendment Act of 2016 provided for the establishment of a
Goods and Services Tax Council or the GST Council.

i. Article 279 – A empowered the President to constitute a GST Council. The Council is
a joint forum of the Centre and the States. It is required to make recommendations to
the Centre and the States on the following matters :

1. The taxes, cesses and surcharges levied by the Centre, the States and the local
bodies would get merged into GST.

2. The goods and services that may be subjected to GST or exempted from GST.

3. Model GST Laws, principles of levy, apportionment of GST levied on

supplies in the course of inter-state trade or commerce and the principles that
govern the place of supply.

4. The threshold limit of turnover below which goods and services may be
exempted from GST.

5. The rates include floor rates with bands of GST.

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6. Any special rate or rates for a specified period to raise additional resources
during any natural calamity or disaster.

● Case Laws: -

Impact on Financial
Case Name Year Court Key Issue Decision Relations

Income tax
Application forms part of
of Article 270 the Clarified the distribution of
T.M. Kanniyan v. Income Tax Officer, Supreme regarding consolidated tax revenue between Union
Pondicherry 1967 Court income tax fund of India and States

Central
enactments
cannot be
Challenge of challenged
Central under Article
enactments 131, only under Limited the scope for States
State of Madhya Pradesh v. Union of Supreme under Article Articles 32 and to challenge Central laws
India 2011 Court 131 262 under Article 131

Challenge of
Coal Bearing
Areas
(Acquisition
and Upheld the Affirmed Centre's power
Supreme Development) Central law's over state resources in
State of West Bengal v. Union of India 1962 Court Act, 1957 validity certain circumstances

Legitimacy of
Goodyear India Ltd. v. State of Supreme state sales tax Validated state Reinforced states' power to
Haryana 1989 Court acts sales tax acts levy certain taxes

Article 131 can

be used for
Dispute disputes
between regarding
Centre and constitutional Expanded the interpretation
Supreme State under rights and of Article 131 for
Mahesh G v. Union of India 2019 Court Article 131 duties Centre-State disputes

How is the Centre stronger than the states: -

Indian federalism, as enshrined in the Constitution, is designed to balance the powers
between the Centre and the states. However, several provisions and practices tilt the balance
significantly in favour of the Centre, making it stronger than the states. Below are the key
factors contributing to this central dominance:
● Legislative Powers:
i. Union List Dominance: The Union List, which enumerates subjects on which
only the Centre can legislate, contains more subjects than the State List.
Additionally, the subjects in the Union List are often more significant, such as
defense, foreign affairs, and atomic energy.

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ii. Concurrent List: Both the Centre and the states can legislate on subjects in
the Concurrent List. However, in case of a conflict between central and state
laws on these subjects, the central law prevails.
iii. Residuary Powers: Any subject not mentioned in any of the three lists
(Union, State, Concurrent) automatically falls under the Centre's jurisdiction.
● Administrative Control:
i. Governor's Role: Governors, appointed by the President, act as
representatives of the Centre in states. They have the power to reserve certain
bills passed by the state legislature for the President's consideration, thereby
allowing central oversight over state legislation.
ii. All-India Services: Services like the Indian Administrative Service (IAS) and
Indian Police Service (IPS) are common to both the Centre and the states.
While these officers serve in states, they are recruited and managed by the
Centre, ensuring central influence over state administration.
● Financial Supremacy:
i. Taxation and Revenue Distribution: The Centre collects the majority of
taxes and then distributes them to states. This makes states financially
dependent on the Centre for grants and loans.
ii. Finance Commission: The Finance Commission, appointed by the President,
determines the distribution of financial resources between the Centre and the
states. This central control over financial resources further strengthens the
Centre's position.
● Emergency Provisions:
i. National Emergency (Article 352): During a national emergency, the Centre
assumes sweeping powers, and the states come under direct central control.
ii. President’s Rule (Article 356): If the President believes that a state
government is not functioning according to the Constitution, they can dismiss
the state government and assume direct control of the state's administration.
iii. Financial Emergency (Article 360): During a financial emergency, the Centre
can direct states on financial matters, further curtailing state autonomy.
● Judicial and Constitutional Provisions:
i. Integrated Judiciary: India has a unified judiciary with the Supreme Court at
the apex, which ensures uniformity in the interpretation of laws. This
centralizes judicial power and oversight.
ii. Single Constitution: Unlike in some federations where states have their own
constitutions, India has a single constitution that governs both the Centre and
the states.
iii. Amendment Process: Many constitutional amendments can be made by the
Parliament alone, without requiring the consent of state legislatures, except
for those affecting federal provisions.
● Representation and Political Dynamics:
i. Rajya Sabha Representation: States do not have equal representation in the
Rajya Sabha (Council of States). Representation is based on population,

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which means larger states have more influence, but this does not necessarily
translate to greater autonomy.
ii. Political Influence: The Centre often uses its political influence to interfere
in state matters, especially when different political parties control the Centre
and the states.

● Conclusion: The Indian Constitution, while federal in structure, incorporates several

unitary features that ensure a strong Centre. This design aims to maintain national
unity and integrity but often results in limited autonomy for states. The balance of
power is skewed towards the Centre through legislative, administrative, financial, and
emergency provisions, making Indian federalism unique with a pronounced central
bias.

How do states retain some autonomy in Indian federal structure: -

In the Indian federalism model, states retain power through a combination of constitutional
provisions, legislative frameworks, and judicial interpretations that establish a distinct
division of authority between the central and state governments. Here are the key
mechanisms through which states maintain their power:

● Constitutional Framework:
1. Division of Powers: The Indian Constitution delineates powers between the
Union and the states through three lists in the Seventh Schedule: the Union
List, the State List, and the Concurrent List.
2. This division ensures that states have exclusive jurisdiction over several
important areas, such as police, public health, and agriculture, allowing them
to address local issues effectively.
● Federal Structure: The Constitution establishes a federal structure that allows states
to have their own governments and legislative powers. This structure is described as
"holding together" federalism, where diverse regions maintain autonomy while being
part of a unified nation.
● Judicial Oversight: The Supreme Court of India plays a crucial role in interpreting
the Constitution and resolving disputes between the central and state governments. It
ensures that states can assert their rights and powers as defined by the Constitution.
● Financial Autonomy: States have the autonomy to manage their finances, including
taxation and borrowing. Article 282 of the Constitution allows states to spend funds
for public purposes, and they can borrow without needing consent from the central
government, although compliance with certain conditions may be required. States
have the power to generate revenue through taxation and have control over their
budgets. The Constitution allows states to impose taxes on goods and services.
● Political Dynamics:
1. Political Representation: The Rajya Sabha, or the upper house of Parliament,
is designed to represent the states, giving them a voice in the legislative
process at the national level. This representation is essential for states to
influence central policies that affect them.
2. Interstate Relations: States can form agreements with one another and have
mechanisms for resolving disputes, such as the establishment of interstate

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councils. This facilitates cooperation and negotiation among states, enhancing

their collective power within the federal structure.
● Local Governance: The Constitution mandates the establishment of local
self-governments in rural and urban areas, empowering states to delegate authority to
local bodies. This decentralization enhances local governance and allows states to
tailor policies to meet the specific needs of their communities.
In summary, it can be said that states in India retain power through a well-defined
constitutional framework, legislative autonomy, financial independence, and judicial support,
although they face challenges from centralizing forces within the federal structure.

S. R. Bommai v. Union of India: Case Analysis: -

The S. R. Bommai v. Union of India case, decided by a nine-judge bench of the Supreme
Court of India in 1994, restricts the arbitrary dismissal of state governments under Article
356.
● Background:
i. In 1985, the Janata Party won the Assembly elections in Karnataka and
formed the government with Chief Minister Ramakrishna Hegde. Hegde was
later replaced by SR Bommai in 1988.
ii. In September 1988 a legislator from the Janata Dal, defected from the party
along with 19 other members of the Legislative Assembly, withdrawing
support from the Bommai government.
iii. The state government was dismissed by using Article 356 due to majority
loss from defections. Bommai's request to test the majority was denied by
the governor.
iv. Bommai sought relief in the high court, which ruled against him, leading to
an appeal to the Supreme Court.
● What is Article 356:
1. Article 356 of the Constitution of India is based on Section 93 of
the Government of India Act, 1935.
2. According to Article 356, the President's Rule can be imposed on any state
of India on the grounds of the failure of the constitutional machinery.
3. President's Rule can be imposed in two situations: when the President
receives a report from the state's Governor or is otherwise convinced that
the state government cannot function according to the Constitution
(Article 356), and when a state fails to comply with directions from the
Union government (Article 365).
4. During the President's Rule, the state government is suspended, and the
central government directly administers the state through the Governor.
5. Parliamentary approval is necessary for imposing the President's Rule,
and it should be approved in both Houses of Parliament within two months
through a simple majority.
6. Initially, the President's Rule is for six months and can be extended for up
to three years with parliamentary approval every six months.
7. The 44th Amendment to the Constitution (1978) introduced constraints on
extending the President's Rule beyond one year, allowing extension only
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in case of a national emergency or if the Election Commission certifies the

necessity due to difficulties in conducting state assembly elections.
● Issues raised:
i. Whether the imposition of the President’s rule in the six states was
constitutionally valid?
ii. Were there any political and mala-fide intentions behind the actions of the
council of ministers and the President?
iii. Whether the powers of the President under Article 356(1) stand unfettered?
iv. Are any proclamations under Article 356 subject to judicial review? If yes, to
what extent and what idea of scope will the powers of the court stand in an
action to review the President’s statements?
v. What does the President’s proclamation stating that a situation has arisen
where the state’s legislative functions cannot be in cooperation with the
Constitution’s provisions hold?

● Supreme Court’s Judgement:

1. A nine-judge bench of the Supreme Court emphasised that the Presidential
Proclamation under Article 356 must be exercised with caution, as
advocated by Dr. B.R. Ambedkar and recommended by the Sarkaria
Commission.
2. Both houses of Parliament must thoroughly analyse the Presidential
Proclamation as per Article 356(3). If the proclamation is issued without the
approval of both houses, it lapses within two months, and the state
assembly resumes its function.
3. The Supreme Court can subject the proclamation to judicial review and
entertain writ petitions challenging its legality if they raise arguable
questions.
4. The judgement clarified that the President's power to dismiss a state
government is not absolute but subject to limitations.
i. Recognised that while Article 356 does not explicitly address the
dissolution of the legislature, such powers can be inferred from it.
ii. Noted that Article 174(2), allowing the Governor to dissolve the
Legislative Assembly, and Article 356(1)(a), enabling the
President to confer upon himself the powers of the
Governor and the state government, imply the power to dissolve
the legislature.
5. Based on the report of the Sarkaria Commission on Centre-state Relations
(1988), the Supreme Court enlisted the situations where the exercise of
power under Article 356 could be proper or improper:

Proper use of Article 356 Improper use of Article 356

Hung Assembly: No party secures a majority after elections. The Ministry resigns without exploring alternative ministry
formation.
The majority party declines to form a ministry, and no coalition Governor imposes President's Rule without allowing
ministry with a majority is available. majority test.

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The Ministry resigns after defeat in the assembly, and no party can The ruling party suffers a significant defeat in the Lok Sabha
form a new ministry with a majority. elections.
Internal subversion or deliberate violation of the Constitution. Internal disturbances not amount to subversion or breakdown.
The state government disregards the constitutional direction of the Allegations of maladministration or corruption without proper
Central government. warning.
Physical breakdown, endangering state security. Misuse for intraparty issues or irrelevant purposes.
The state government is not given prior warning, except in
emergencies.

● Significance of the Judgement:

1. The S.R. Bommai case gives one of the landmark judgment of the Supreme
Court regarding the basic structure doctrine as well as recording the
misuse of article 356.
2. The judgment provided clarity on the scope and limitations of Article
356, emphasising its use only in extraordinary circumstances.
3. The principles laid down by the Supreme Court were consistent with the
recommendations of the Sarkaria Commission.
4. The case affirmed the principles of federalism, stating that state
governments are not subordinate to the centre and advocating for cooperative
federalism.
5. The judgement asserted the role of the judiciary in scrutinising the
President's actions under Article 356, ensuring adherence to constitutional
principles and preventing misuse of power.

Asymmetric Federalism: Vertical & Horizontal- Meaning, Example, Conflict and the
way forward: -
● Asymmetric federalism in India refers to the unequal distribution of power between
the central government and various states/regions. This asymmetry exists in both
vertical (between centre and states) and horizontal (among states) dimensions.
Here's an overview of vertical and horizontal asymmetric federalism in India:
● Vertical Asymmetric Federalism: Vertical asymmetry refers to the differences in
power and autonomy between the central government and the states.
1. Meaning: Vertical asymmetric federalism involves unequal power-sharing
between the centre and certain states, with some states having greater
autonomy or special provisions compared to others.
2. Examples:
a. Article 370 (now abrogated) granted special status to Jammu and
Kashmir.
b. Article 371 and its sub-clauses provide special provisions for states
like Nagaland, Assam, Manipur, Andhra Pradesh, and others.
c. The Seventh Schedule of the Constitution, which delineates subjects
under Union, State, and Concurrent Lists, inherently creates some
vertical asymmetry.
● Horizontal Asymmetric Federalism: Horizontal asymmetry refers to differences in
powers, rights, and status among the states themselves.

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1. Meaning: Horizontal asymmetric federalism involves varying degrees of

autonomy or special provisions granted to different states within the
federation.
2. Examples:
a. Special Category States: Some north-eastern states and hilly states
receive preferential treatment in federal assistance and tax breaks.
b. Linguistic and cultural protections: States like Tamil Nadu have
special provisions to protect their language and culture.
c. Varying levels of fiscal autonomy: Different revenue-sharing
formulas and grants for different states.
● Conflicts and Challenges:
1. Regional Disparities: Asymmetric arrangements can lead to perceived
favouritism and economic imbalances among states.
2. Separatist Tendencies: Special status for some regions may fuel demands
for greater autonomy or even separation in other areas.
3. Administrative Complexity: Managing different sets of rules for various
states can complicate governance and policy implementation.
4. Political Tensions: Asymmetric arrangements can become points of
contention in centre-state and inter-state relations.
● Way Forward:
1. Flexible Approach: Maintain a balance between national unity and regional
aspirations by allowing for flexible, need-based asymmetric arrangements.
2. Regular Review: Periodically assess the effectiveness and necessity of
asymmetric provisions to ensure they remain relevant and beneficial.
3. Transparent Criteria: Establish clear, objective criteria for granting special
status or provisions to minimize perceptions of favouritism.
4. Cooperative Federalism: Promote dialogue and cooperation between the
centre and states, and among states, to address concerns and find mutually
acceptable solutions.
5. Equalization Measures: Implement policies to reduce economic disparities
between states while maintaining necessary asymmetric arrangements.
6. Constitutional Safeguards: Ensure that asymmetric provisions are
well-defined and protected within the constitutional framework to prevent
arbitrary changes.
In conclusion, while asymmetric federalism in India has helped accommodate diverse
regional needs and historical contexts, it requires careful management to balance unity and
diversity. The way forward lies in maintaining flexibility, promoting cooperation, and
ensuring that asymmetric arrangements serve their intended purpose without exacerbating
regional tensions or inequalities.

Cooperative, competitive , confrontational federalism: meaning, examples, conflict and way

forward: -

● Cooperative Federalism: Cooperative federalism is a model of intergovernmental relations

where the national and state governments work together to achieve common goals. Key
features include:

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i. Overlapping functions and shared power between national and state governments.
ii. Joint implementation of governmental programs by national and state bureaucratic
agencies.
iii. Examples include:
1. With the rollout of the GST and the formation of the GST Council, both the
Centre and states government are having a say in implementing the one
country-one tax system.
2. The union government has abolished the Planning Commission and replaced
it with NITI Aayog. One of the mandates of the NITI Aayog is to develop
competitive federalism.
3. Implementation of the Mahatma Gandhi National Rural Employment
Guarantee Act (MGNREGA), where both levels of government collaborate to
provide employment.

● Competitive Federalism: Competitive federalism refers to the competition among states to

attract investment, improve governance, and enhance service delivery. This model encourages
states to innovate and adopt best practices to improve their standing.
i. Key Aspects:
1. Fiscal Incentives: States compete for central grants and investments by
offering better infrastructure and policies.
2. Policy Experimentation: States can tailor policies to their unique contexts,
leading to diverse approaches to governance and development.
3. However, competitive federalism can lead to disparities, as more developed
states may attract more resources, leaving less developed states behind.
ii. For e.g., The SDG India Index, Aspirational Districts Programme, Swachh Bharat
Ranking, Ease of Doing Business Ranking incorporates a sense of competition
amongst the states for funds from the central government.

● Confrontational Federalism: Confrontational federalism refers to conflicts and tensions

between the federal government and states, often due to overreach by the Centre or resistance
from states. Conflict can arise due to:
i. Disagreements over the balance of power between federal and state governments
ii. Imposition of policies or mandates that states oppose, by the Federal government.
iii. There are disputes over issues like taxation, regulation, social policies, etc.
iv. Examples include:
1. The unilateral revocation of the special status conferred on Jammu and
Kashmir (J&K) under Article 370 of the Constitution has been criticized by
many experts as against the spirit of federalism.
2. Many constitutional experts have criticized the central government's decision
of using a concurrent List to make laws on state list subjects. For example:
The union government has passed three farm laws despite agriculture being
the state list subject. This has led to massive farmers’ protests.
3. The role of the governor as an agent of the central government whereby
governors act in a partisan way, generally against the state government whose
views are not in concurrence with the party in power at union level.
4. There are many river-water sharing disputes amongst the states. For example
Cauvery river disputes, Mahadayi river dispute.

● Way Forward: To enhance the effectiveness of federalism in India, several measures can be
undertaken:
i. Strengthening Cooperative Mechanisms: Enhance the role of the Inter-State
Council and Zonal Councils to facilitate better communication and cooperation.
ii. Decentralization of Power: Increase the autonomy of states by devolving more
powers and resources, allowing them to address local needs more effectively.

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iii. Fiscal Reforms: Revise the distribution of central taxes to ensure equitable
allocation, particularly for underdeveloped states.
iv. Promoting Best Practices: Encourage states to share successful governance models
and policies, fostering a culture of learning and adaptation.
v. Conflict Resolution Mechanisms: Establish robust mechanisms for resolving
disputes between the Centre and states through dialogue and negotiation rather than
confrontation.

Contemporary Issues: -

6th Schedule:

● Why in news: Sixth Schedule of the constitution is again in news, after the
reconstitution of high-powered committee to examine Ladakh’s demand for
inclusion in the Sixth Schedule.
● Background: The Sixth Schedule of the Indian Constitution pertains to the
administration of tribal areas in certain north-eastern states, namely Assam,
Meghalaya, Tripura, and Mizoram. This schedule delineates special provisions for
governance, administration, and preservation of the cultural identity and rights of the
indigenous tribal populations residing in these regions.
● Constitutional Framework:
1. Article 244: Part X: Special system of administration for ‘Scheduled
Areas’(SA) & ‘Tribal Areas’(TA).
2. 6th Schedule: Administration of tribal areas in 4 North-Eastern states –
Assam, Meghalaya, Tripura & Mizoram (AMTM).
3. Rationality behind the arrangement: To protect the culture, customs &
civilizations of people of such areas, who still have not assimilated with the
majorities in such areas.
4. Article 244(2) and 275(1): Provisions as to the Administration of Tribal
Areas in the States of Assam, Meghalaya, Tripura and Mizoram.
5. Article 244A: Formation of an autonomous state comprising certain tribal
areas in Assam and creation of a local legislature or Council of Ministers or
both.
● Issues: There are several issues pertaining to the Sixth Schedule in terms of ‘centre
state relation’:
1. Different tribal populations under a single autonomous council: Within a
single autonomous council, there are various tribal populations with various
cultures and customs. For example, In North Cachar Hills district, which was
renamed Dima Hasao, there are 13 tribes; the major tribal groups are Dimasa,
Kuki, Zeme, Hmar and Karbi.
2. Insufficient allocation of funds: The Members of Chakma, Lai, and Mara
Councils are of the view that the funds provided by the Central Government
are insufficient and that funds should be distributed to local councils on the
basis of their level of backwardness rather than their population.
3. Inadequate devolution of power: While the Autonomous district
councils(ADCs) have been granted significant powers to make laws, the state
governments still have a significant role in the administration of these areas,
which limits the effectiveness of the ADCs. The Sixth Schedule has created
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multiple power centres instead of bringing in a genuine process of autonomy

in the region.
4. Inter-tribal conflicts: The ADCs are meant to represent the interests of all
tribal communities in a district, but sometimes, the political process of electing
members to the ADCs can lead to conflicts between different tribal
groups. Also, there are frequent conflicts of interest between the District
Councils and the State Legislatures.
5. Corruption and lack of accountability: In the functioning of the ADCs,
there have been allegations of corruption and misuse of funds. Hence, There is
a lack of transparency and accountability in their functioning.
6. Lack of awareness and participation: Many tribal communities are not fully
aware of the provisions of the Sixth Schedule and their rights under it. This
has led to a lack of participation in the political process and a limited
understanding of the benefits of the ADCs.
● How can the issues be dealt with: The issues in the Sixth Schedule areas related to
centre-state relations can be addressed in the following ways:
1. Resolving Conflicts Between District Councils and State Legislatures:
i. The powers and jurisdiction of District Councils and State Legislatures
must be clearly delineated to minimize conflicts.
ii. Formal mechanisms for coordination and dispute resolution between
the two entities must be established.
2. Ensuring Effective Decentralization of Powers:
i. A more substantive powers and resources to the District Councils must
be developed to enable real autonomy and self-governance.
ii. Smaller, more localized councils should be established to bring
administration closer to the people.
3. Improving Financial Autonomy:
i. A timely constitution of State Finance Commissions must be ensured
to recommend devolution of funds to District Councils.
ii. District Councils must be provided direct access to central funds
instead of routing through state governments.
4. Protecting Rights of Non-Tribals:
i. Non-discrimination and equal rights for non-tribal residents in Sixth
Schedule areas must be ensured.
ii. An inclusive development and social harmony must be promoted
between tribal and non-tribal communities.
5. Enhancing Accountability and Transparency:
i. Financial management systems and audit mechanisms in District
Councils must be strengthened to curb corruption.
ii. Gram sabhas and civil society should be empowered to monitor the
functioning of local governments.
6. Adapting to New Contexts:
i. The Sixth Schedule provisions could be amended to make them
applicable to newly created tribal areas like Ladakh.

Special Packages:
● Why in news: The Chief Ministers of Bihar and Andhra Pradesh have
demanded special financial packages for their States, raising questions about the
fairness and implications of such allocations. This issue of ‘special packages’ is a
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nuanced one, involving considerations of fiscal federalism, inter-state equity, political

influence, and economic efficacy.

Background:
● What are Special Packages:
1. Special packages are discretionary grants provided by the
central government, often resulting from political negotiations
rather than strictly defined needs. It is granted under Article
282 (‘Miscellaneous Financial Provisions’).
2. The Indian Constitution allows for addressing specific issues in
states through Articles 371A to H, which provide special
provisions for certain states based on their unique
circumstances. For instance, these articles safeguard local
customs, laws, and administrative practices, particularly in
north-eastern states like Nagaland and Manipur.
● Special Category Status (SCS): Special Category Status (SCS) is a classification
that assists states facing geographical and socio-economic disadvantages. This status
was first recommended by the Fifth Finance Commission in 1969 and has been
granted to states like Assam, Nagaland, and Himachal Pradesh. States with SCS
receive a higher proportion of central assistance, traditionally around 90% as grants
compared to 30% for non-SCS states.
● Issues:
a. The allocation of special packages often reflects political bargaining
rather than genuine economic need. Coalition politics has revived the
demand for these packages, as smaller parties and regional leaders
leverage their political influence to secure additional funding for their
states. This situation can undermine the principles of fiscal federalism,
where funds should ideally be distributed based on objective criteria
rather than political alignment.
b. Politically influential states might receive more funds, leading to
perceptions of bias and favoritism, which can exacerbate regional
inequalities.
c. Special packages increase the central government’s discretionary
power over state finances, which can undermine the federal structure
and states’ autonomy.
d. Higher allocations from the Centre can boost a state’s growth if
managed well. However, states with poor governance might see higher
leakages and inefficiencies, as seen in the case of Bihar.
● What can be done:
I. Revisiting Allocation Criteria: There is a call to refine the criteria for
granting special packages and SCS to ensure fairness and transparency. This
involves clearly defining eligibility based on socio-economic indicators and
infrastructure development, rather than political considerations.
II. Encouraging Self-Sufficiency: To reduce dependency on central assistance,
states should be encouraged to develop comprehensive plans focusing on
sustainable growth and revenue generation. This approach aims to promote
economic independence and reduce reliance on discretionary grants from the
central government.
III. Strengthening Federal Structures: Enhancing the federal structure to ensure
transparent fiscal boundaries and equitable resource distribution is essential.
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The Finance Commission's role in determining allocations should be

reinforced to maintain a fair distribution of resources among all states,
regardless of their political affiliations.

Delhi v Centre:

● Why in news:
I. The ongoing conflict between the Delhi government and the Central
government revolves around the control and administration of bureaucratic
services in the National Capital Territory (NCT) of Delhi. This issue has
recently been highlighted by the Supreme Court's rulings, which have
significant implications for the governance structure in Delhi.
II. Furthermore, the Issues of distribution of Power between Delhi government
and Centre first arose from a reference made by a two-judge Bench of the SC
in 2019, which left the question of who will have control over the
administrative services for consideration by a larger Bench.
III. Recently, the Supreme Court (SC) has ruled in favour of the Delhi government
on the issue of who controls the Bureaucracy in the National Capital where it
ruled that the Delhi government has legislative and executive powers over
services except for public order, police and land.
● Background of the issue:

I. The conflict stems from the interpretation of legislative and executive powers
as outlined in Article 239AA of the Indian Constitution, which provides for a
legislative assembly in Delhi. Historically, the Delhi government has sought
greater autonomy in managing bureaucratic services, while the Centre has
argued for its control, citing Delhi's status as a Union Territory.
II. The status of Delhi being a Union Territory under Schedule 1 of the
Constitution but christened the ‘National Capital Territory’ under Article
239AA.
III. The 69th amendment to the Constitution of India inserted Article 239AA,
which declared the Union Territory of Delhi to be administered by a
Lieutenant Governor who works on aid and advice of the elected legislative
assembly. However, the ‘aid and advice’ clause pertains only to matters on
which the elected Assembly has powers under the State and Concurrent
Lists with the exception of public order, police, and land.
IV. Further, the Article 239AA also notes that Lieutenant Governor has to
either act on the aid and advice of the Council of Ministers, or he is bound
to implement the decision taken by the President on a reference being made
by him. Also, Article 239AA, empowers the Lieutenant Governor to refer
a difference of opinion on ‘any matter’ with the Council of Ministers to
the President.
V. Thus, this dual control between Lieutenant Governor and the elected
government leads to a power tussle.
Way forward: The federal nature of the Constitution is its basic feature and cannot be
altered, thus, the stakeholders wielding power intend to protect the federal feature of our
Constitution. Extreme political centralisation or chaotic political decentralisation can both
lead to the weakening of Indian federalism. The satisfactory and lasting solution of the
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vexed problem is to be found not in the statute-book but in the conscience of people in
power. With collective responsibility, aid, and advice as the pillars of democracy, a balance
can be established. Delhi’s governance needs a new re-imagination. What distinguishes
Delhi from other federal districts is sheer size. Learning from international examples, and
conceptualizing a new structure, can be a way forward. The following reforms can be
considered:
I. Legislative Reforms:
● Amendments to the Government of National Capital Territory of Delhi (GNCTD)
Act could clarify the powers and responsibilities of both the Delhi government and
the Central government. These reforms should aim to: (1) clearly delineate the roles
of the Lieutenant Governor and the Delhi government in administrative matters and
(2) reinforce the principle of cooperative federalism, ensuring that both entities work
collaboratively rather than in opposition.
II. Strengthening Cooperative Federalism:
● Promoting a culture of cooperative federalism is essential. This can involve: regular
meetings between the Central and Delhi governments to discuss governance issues
and resolve conflicts amicably and establishing joint committees to oversee key
administrative functions, allowing for shared decision-making and accountability.
III. Public Engagement and Transparency:
● Enhancing public engagement in governance can foster accountability. Initiatives
may include: (1) Public forums and consultations to gather citizen input on
administrative issues. (2) Transparent processes for appointments and transfers of
bureaucrats, ensuring that the public understands the rationale behind decisions.
IV. Conflict Resolution Mechanisms:
● Establishing formal mechanisms for conflict resolution can help manage disputes
effectively. This could involve: Mediation processes facilitated by neutral parties to
address grievances between the two governments. And setting up a dedicated body
to handle administrative disputes, ensuring timely and fair resolutions.
V. Empowering Local Governance:
● Increasing the powers of the Delhi government in non-sensitive areas can enhance
local governance. This includes: Allowing the Delhi government greater autonomy
in areas such as health, education, and urban development, which would enable it to
respond more effectively to local needs. And ensuring that civil servants are
accountable to the elected representatives of the Delhi government, thereby
reinforcing democratic governance.

Inter-State Water disputes:

Why in news:

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● Odisha had complained to the Ministry of Jal Shakti under the Inter-State River
Water Disputes (ISRWD) Act 1956 accusing Chhattisgarh of misleading
the Mahanadi Water Disputes Tribunal (MWDT) by releasing water
in Mahanadi river in the Non-Monsoon Season.
● Background: Interstate River Water Disputes refer to disputes between two or
more states regarding use, distribution and control of rivers flowing through them.
In recent years, increasing water scarcity, a rapid rise in urban and rural demands for
freshwater, and contentious political dynamics have further exacerbated the
problem. The recent cases of the Cauvery Water Dispute and the Satluj-Yamuna
Link Canal case are examples.
● Constitutional Provisions:
o Entry 17 of the State List deals with water i.e., water supply, irrigation,
canal, drainage, embankments, water storage and hydro power.
o Entry 56 of the Union List empowers the Union Government for
the regulation and development of inter-state rivers and river valleys to
the extent declared by Parliament to be expedient in the public interest.
o According to Article 262, in case of disputes relating to waters:

▪ Parliament may by law provide for the adjudication of any

dispute or complaint with respect to the use, distribution or control
of the waters of, or in, any inter-State River or river valley.

▪ Parliament may, by law, provide that neither the Supreme Court

nor any other court shall exercise jurisdiction in respect of any
such dispute or complaint as mentioned above.
● Legal Framework for resolution of such disputes: The resolution of inter-state
water disputes is primarily governed by the Inter-State River Water Disputes
(ISRWD) Act, 1956, enacted under Article 262 of the Indian Constitution. Key
provisions include:
1. Tribunal Formation: When states cannot resolve disputes
through negotiation, the central government can establish a
water dispute tribunal to adjudicate the matter.
2. Finality of Tribunal Awards: The awards given by these
tribunals are binding, and the law restricts the jurisdiction
of the Supreme Court and other courts over these disputes,
aiming to provide a swift resolution mechanism.
3. Recent Amendments: The Inter-State River Water
Disputes (Amendment) Bill, 2019 seeks to streamline the
adjudication process, addressing issues like delays and
lack of transparency in tribunal proceedings.
Factors contributing to increased inter-state water disputes:
● Conflicting Jurisdiction: The Indian Constitution grants water management rights to
individual states, but inter-state rivers fall under the Centre's purview. This ambiguity
creates uncertainty and opportunities for disputes to arise.

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● Mismanaged Demand: Inefficient practices like water-intensive agriculture in arid

regions, neglect of traditional water harvesting methods, and subsidized power for
flood irrigation contribute to water scarcity and strained supplies.
● Seasonal Scarcity: India's rainfall is heavily dependent on monsoon, changing
climate patterns, including irregular rainfall and prolonged droughts, complicates the
water management. The recurring water crisis in regions like Marathwada in
Maharashtra are prime examples of climate-induced challenges.
● Ineffective Resolution Mechanisms: Article 262 limits the judiciary's role in water
disputes, while dedicated tribunals have historically proven slow and ineffective,
hindering timely and sustainable solutions.
● Political Exploitation: Politicians often exploit river disputes for their own gain,
using them as rallying points to secure votes and stoking regional rivalries, as seen in
the Cauvery dispute.
● Increased population and urbanization- Rapid population growth and urbanization
place increased stress on water resources. In cities like Chennai, mismanagement,
pollution, and over-extraction of groundwater have led to severe water scarcity issues.
Measures to Address the issue:
To address the challenges posed by inter-state water disputes on the centre-state relationship
in India, several measures can be taken:
● Strengthening the Legal Framework:
1. Amend the Inter-State River Water Disputes (ISRWD) Act, 1956 to streamline
the dispute resolution process and make it more efficient.
2. Establish a single permanent tribunal instead of multiple ad-hoc tribunals to
ensure consistency and faster resolution of disputes.
3. Bring Inter-state water disputes under interstate council constructed by the
president under article 263 and need for consensus-based decision making.
4. Reduce the scope for politicization by limiting the role of the central
government in the constitution and functioning of tribunals.
● Improving Data Collection and Sharing:
1. Develop a robust and transparent system for collecting, storing, and sharing
water data among states to establish a common baseline for adjudication. A
central repository of water data is necessary for informed decision making. It
is important for the central government to take a more active role in resolving
inter-state water disputes.
2. Involve independent experts and stakeholders in data collection and analysis to
ensure credibility and acceptance by all parties.
● Promoting Cooperation and Negotiation:
1. Encourage states to resolve disputes through negotiation and
consensus-building before approaching tribunals.
2. Facilitate dialogue and information sharing among states to build trust and
find mutually acceptable solutions.
3. Incentivize states to cooperate on water management through financial
assistance and policy support from the central government.

● Adopting an Integrated Approach:

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1. Shift from a narrow focus on water allocation to a more comprehensive

approach that considers ecosystem services, environmental flows, and climate
change adaptation.
2. Promote basin-level planning and management involving all stakeholders to
ensure equitable and sustainable use of water resources.
3. Invest in water conservation, efficiency, and demand management to reduce
conflicts over scarce water resources.
● Strengthening Centre-State Coordination:
1. Clarify the roles and responsibilities of the central government and states in
water management through legislative and administrative measures.
2. Enhance the capacity of the central government to provide technical, financial,
and institutional support to states.
3. Establish a permanent mechanism for monitoring and facilitating the
implementation of tribunal awards and agreements.
By adopting a combination of these measures, India can work towards a more effective and
cooperative system of inter-state water governance that balances the interests of states and the
nation as a whole.
***

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The Magna Carta for Mains 2024

Theme 8: Local Self Governance

PYQs

Year Question Context/ Reason/ Linkage

2013 Discuss the recommendations of the 13th 14th FC was appointed in 2013.
Finance Commission which have been a
departure from the previous commissions
for strengthening the local government
finances.

2015 In absence of a well-educated and organized RJ and HR imposed educational

local level government system, 'Panchayats' qualifications for panchayats.
and
'Samitis' have remained mainly political
institutions and not effective instruments of
governance. Critically discuss.

2017 "The local self-government system in India 25 years of 73/74rd

has not proved to be effective instrument of Constitutional Amendments
governance". Critically examine the
statement and give your views to improve
the situation.

2018 Assess the importance of Panchayat system Standing Committee on Rural

in India as a part of local government. Apart Development submitted its
from government grants, what sources the report on 'Improvement in the
Panchayats can look out for financing functioning of Panchayats' in
developmental projects. 2018

2019 "The reservation of seats for women in the A decade after a constitutional
institutions of local self- government has amendment guaranteeing 33%
had a limited impact on the patriarchal reservation for women in the
character of the Indian Political Process." Lok Sabha and state assemblies
Comment. was stalled. The Women's
Reservation Bill, 2008, was
approved by the Rajya Sabha,
but failed to find support in the
Lok Sabha. Biju Janata Dal
(BJD) declared 33% reservation
for women in the forthcoming
elections, the Trinamool
Congress (TMC) said it would
allocate 41% of Lok Sabha poll

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tickets to women.

2020 The strength and sustenance of local Theory, COVID, Devolution

institutions in India has shifted from their Index.
formative phase of 'Functions, Functionaries
and Funds' to the contemporary stage of
'Functionality'. Highlight the critical
challenges faced by local institutions in
terms of their functionality in recent times

2022 To what extent, in your opinion, as the 30 years of 73/74rd

decentralisation of power in India changed Constitutional Amendments
the governance landscape at the grassroots?

2023 "The states in India seem reluctant to Housing and Urban Affairs
empower urban local bodies both Ministry Launched 'City
functionally as well as financially." Finance Rankings 2022' in
Comment March 2023, NSE launches first
ever index of investment grade
municipal bonds in Feb 2023,
RBI's first report on Municipal
Finances in November 2022, 30
years of 74th Constitutional
Amendment (came into effect in
1993).

Local-Self Government
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● What is Local-Self Government: Local self-government in India is a system of

administration where local bodies, elected directly by the people (in most cases),
manage the affairs of local communities such as villages, towns, or cities. This system
is the third tier of government, beneath the Central and State Governments, and aims
to devolve powers and resources to the local level to empower local people to have a
say in matters that impact their daily lives. The ‘Local-Self Government’ can be
divided further into its rural and urban counterparts.

Historical Background and Evolution of ‘Local Self-Government’

The concept of local self-government in India has evolved through various historical phases,
each contributing to the current structure and functioning of local bodies.
· Ancient Period:
I. Vedic Period: Local governance in ancient India can be traced
back to the Vedic period, where village assemblies known as
‘Sabhas’ and ‘Samitis’ played significant roles in
administration and decision-making.
II. Mauryan Empire: Emperor Ashoka established a system of
local administration with officials called ‘Mahamatras’
responsible for the welfare of the people in various regions.
· Medieval Period:

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I. Feudal System: During the medieval period, local governance

was characterized by the emergence of feudalism. Local
chieftains and feudal lords had varying degrees of autonomy
and were responsible for revenue collection and maintaining
order within their territories.
· Colonial Period:
I. Regulation of 1816: This regulation conferred judicial authority to
village panchayats in certain provinces, marking the beginning of
formal local governance under British rule.
II. Mayo's Resolution (1870): This resolution aimed to develop local
institutions by enlarging their powers and responsibilities.
III. Bengal Village Chowkidari Act (1870): Empowered the District
Magistrate to constitute panchayats in villages.
IV. Lord Ripon’s Resolution (1882): Lord Ripon, known as the “Father
of Local Self-Government in India,” introduced reforms to increase
Indian participation in local administration. His resolution laid the
foundation for democratic forms of municipal governance.
· 20th Century Developments:
I. Montagu-Chelmsford Reforms (1919): Introduced a dyarchy system
where local government responsibilities were given to ministers,
enhancing local representation.
II. Government of India Act (1935): Allowed provinces to enact
legislation for local governance, further decentralizing administrative
powers.

Mahatma Gandhi’s vision on ‘Local Self Government’

· Mahatma Gandhi's vision for local self-government in India was deeply rooted in
his concept of ‘Swaraj’ or self-rule. He believed that true democracy and
self-governance could only be achieved through the empowerment of villages and
local communities.
· Gandhi's idea of ‘Swaraj’ emphasized self-governance and political
decentralization. He envisioned a system where power resided with the people,
and governance was conducted through local communities rather than a
centralized authority. This concept extended to all aspects of life, including
political, economic, and social spheres.
· Gandhi's ideal of ‘Gram Swaraj’ or village self-governance was central to his
vision. He believed that each village should function as a self-sufficient republic,
managing its own affairs independently. This included local decision-making,
resource management, and conflict resolution. Gandhi saw villages as the
foundational units of India's political system, where true democracy could be
practiced.

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· He advocated for the Panchayat Raj system as the vehicle to achieve his vision of
village self-governance. He saw Panchayats (village councils) as essential
institutions for initiating both political and economic democracy at the grassroots
level. These councils were to be self-reliant, self-sufficient, and responsible for
addressing the needs of their communities.
· Principles of Gandhi's Local Self-Government:
I. Decentralization of Power: Gandhi believed in the
decentralization of both political and economic power. He
argued that centralization leads to the concentration of power in
the hands of a few, which contradicts the principles of
democracy and self-governance.
II. Self-Sufficiency: Villages should be economically
self-sufficient, utilizing local resources for development. This
would reduce dependency on external sources and promote
sustainable development.
III. Participatory Democracy: Gandhi emphasized the importance
of direct participation of villagers in decision-making
processes. He believed that democracy could only be
meaningful if people at the grassroots level had a say in their
governance.
IV. Non-Violence and Truth: Gandhi's philosophy of non-violence
and truth was integral to his concept of local self-government.
He believed that these principles should guide the functioning
of local institutions and the behavior of individuals within the
community.
· Impact and Legacy: Although Gandhi's vision of ‘Gram Swaraj’ was not fully
realized during his lifetime, his ideas significantly influenced India's approach to
local self-governance. The 73rd and 74th Constitutional Amendments in 1992,
which provided constitutional status to Panchayati Raj Institutions (PRIs) and
Urban Local Bodies (ULBs), were in line with Gandhi's principles of
decentralization and local self-governance.
Important Committees on ‘Local Self-Government’
· Committees on ‘Panchayati Raj Institutions’:

Committee Year Key Recommendations

Recommended a three-tier system of Panchayati Raj Institutions: Gram Panchayat,

Panchayat Samiti, and Zila Parishad. Direct election to ‘Gram Panchayat’,
Balwant indirect election to Panchayat samiti and Zilla Parishad. Collector shall be the
Rai Mehta chairman of Zilla Parishad and such body shall have an advisory/ Supervisory role
Committee 1957 over the Gram Panchayat. Elections shall be conducted every 5 years.

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Proposed a two-tier system: Zila Parishad and Mandal Panchayat. Emphasized the
Ashok district as the first point of decentralization. Allowed representation of political
Mehta parties. Power of taxation was also proposed for local govt. Apart from this, a system
Committee 1977 of ‘Social Audit’ was proposed. A state minister for ‘PRI’ was also proposed.

Hanumanth
a Rao Focused on administrative and financial decentralization to strengthen Panchayati Raj
Committee 1983 Institutions.

Suggested making the district the basic unit of planning and development, and holding
regular elections. Zilla Parishad to be the main body for directing democratic
G.V.K. Rao decentralization. District development commissioner post has to be created (A CEO
Committee 1985 of the Zila Parishad).

Recommended constitutional recognition of Panchayati Raj Institutions and more

L.M. financial resources for them. Recommended for ‘Judicial Tribunals’ to be set-up in
Singhvi each state to adjudicate matters relating to elections to these institutions and other
Committee 1986 matters pertaining to its functioning.

Sarkaria
Commissio Examined Centre-State relations and recommended measures to strengthen local
n 1988 governance.

P.K.
Thungan Suggested measures to revitalize Panchayati Raj Institutions and improve their
Committee 1989 effectiveness.

Harlal
Singh
Kharra Focused on further strengthening the Panchayati Raj system through various
Committee 1990 administrative reforms.

· Committees and commissions on ‘Urban Local-Government’:

Committee Year Key Recommendations

V.M. Dandekar Recommended measures for financial autonomy and resource

Committee 1983 mobilization for urban local bodies.

National Commission on Suggested the creation of a national urban policy and emphasized the
Urbanisation (NCU) 1988 need for integrated urban development.

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2005
Second Administrative -200 Focused on urban governance reforms, decentralization, and
Reforms Commission 9 enhancing the capacity of ULBs.

High Powered Expert Recommended significant investment in urban infrastructure and

Committee (HPEC) 2011 reforms in urban governance to enhance efficiency.

Proposed the development of 100 smart cities with modern

Smart Cities Mission 2015 infrastructure and efficient service delivery mechanisms.

Recommended grants for urban local bodies and emphasized

15th Finance Commission 2020 performance-based grants to improve urban governance.

Status Quo of ‘Local Self-Government’ in India

Panchayati Raj Institutions
Overview:
The Panchayati Raj system is a three-tier structure of governance in rural areas, it includes:
1. Gram Panchayat: The basic unit at the village level, i.e., the lowermost level of
Rural local government. It carries the responsibilities of administration and
development at the village level.
2. Panchayat Samiti: The intermediate level at the block level. It carries the
responsibilities of administration and development of a ‘Group of villages’.
3. Zilla Parishad: The district-level body. This is the Top-most level of ‘Rural Local
Government’. It carries the responsibilities of administration and development at a
district level.

Legislative Framework: The 73rd Constitutional Amendment:

· The 73rd Constitutional Amendment Act of 1992 is a landmark legislation in India

that aimed to strengthen the Panchayati Raj system, thereby promoting democratic
decentralization and empowering rural communities. It holds significant
importance for several reasons:
1. Democratic Decentralization: It aimed to decentralize power from
central and state governments to local self-government bodies, thereby
promoting grassroots democracy.
2. Empowerment of Rural Communities: By providing Panchayats with
more power and authority, the amendment sought to empower rural
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communities to undertake local development works and address their

specific needs.
3. Enhanced Participation: The amendment facilitated greater participation
of marginalized groups, including Scheduled Castes (SCs), Scheduled
Tribes (STs), and women, in local governance.
4. Institutional Framework: It provided a constitutional status to the
Panchayati Raj Institutions (PRIs), ensuring their continuity and stability.
5. Accountability and Transparency: The amendment introduced measures
to make Panchayats accountable to the people through regular elections,
open meetings, and public disclosure of accounts.
· Salient Features of the 73rd Constitutional Amendment Act: The 73rd
Amendment introduced several key features to strengthen the Panchayati Raj
system: -
1. Three-Tier Structure: Gram Panchayat at the village level, Panchayat
Samiti at the intermediate or block level and Zila Parishad at the district
level. It attempts to bring uniformity in the structure of Panchayati Raj
across the country. There is a caveat that if a particular state has a
population < 20 Lakhs, then such states are exempted from constituting
panchayats at the intermediate level.
2. Gram Sabha: The Act enumerates ‘Gram Sabha’ as the foundational
stone of the Panchayati Raj System. It is defined as ‘A body consisting of
all persons (Above 18 years of age) registered in the electoral rolls of a
village’. It acts as the foundation of the Panchayati Raj system, with
powers and functions defined by state legislatures.
3. Direct Elections: All the ‘Members of the Panchayats at all three levels’
are elected directly by the people. But, the chairpersons of Panchayats at
the intermediate and district levels are elected indirectlyfrom among the
elected members.
4. Disqualifications: A person can be disqualified to take part in the election
if that person is so disqualified (a) under any law for the time being in
force for the purpose of elections to the legislature of the state concerned,
(b) under any law made by the state legislature. However, no person shall
be disqualified on the ground that he is less than 25 years of age if he has
attained the age of 21.
5. Reservation of Seats: The Act provides for reservation of seats for
Scheduled Castes and Scheduled Tribes (in all three levels) in proportion
to their population in the Panchayat area. Further, reservation is to be
facilitated for the offices of chairpersons in the panchayat at the village or
any other level. Apart from this, reservation of not less than one-third of
the total seats is for women, including the positions of chairpersons at all
levels.
Caveat:[ SC and ST reservation is not applicable in the state of Arunachal
Pradesh (83rd CAA, 2000)].
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6. Powers and Functions: States are required to devolve powers and

responsibilities to Panchayats to enable them to function as institutions of
self-government. The Eleventh Schedule Lists 29 subjects over which
Panchayats have jurisdiction, including agriculture, land improvement,
minor irrigation, animal husbandry, fisheries, social forestry, and rural
housing, etc.
7. State Finance Commission: Each state (Governor) is required to
establish a State Finance Commission every five years, to recommend the
distribution of financial resources between the state government and
Panchayats. The commission further has the duty to recommend measures
needed to improve the financial position of the panchayat. It also deals
with any other matter referred to it by the governor in the interest of the
panchayat. The legislature of the state shall provide for the qualification
of the members and the composition of the commission. The report and
recommendations of the commission is placed before the state legislature
by the Governor.
8. State Election Commission: Each state must establish a State Election
Commission, to conduct free, fair, and regular elections to the Panchayats.
Such commission shall consist of a ‘state election commissioner’(to be
appointed by the governor). The commission may make provisions with
respect to all matters relating to elections to the panchayats.
9. Continuance of Existing Laws: Existing laws relating to Panchayats
continue to be in force until amended or repealed, or until the expiration of
one year from the commencement of the amendment.
10. Bar on Judicial Interference: Courts are barred from interfering in
electoral matters related to Panchayats, ensuring the autonomy of the
election process. It is declared that the “validity of any law relating to
delimitation of constituencies or the allotment of seats to such
constituencies cannot be questioned in a court of law.”
11. Audit of Accounts: States can make provisions for the audit of Panchayat
accounts to ensure financial accountability.
12. Application to Union Territories: Although applicable to UT, the
President can direct any exceptions of modifications.
13. Exempted States and areas:
Exempted States and Reason for Exemption
Areas

Special constitutional provisions under Article 371A.

Nagaland

Special constitutional provisions and presence of

autonomous district councils.
Meghalaya

Special constitutional provisions under Article 371G.

Mizoram

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Governed by the Fifth and Sixth Schedules of the

Scheduled Areas and Constitution.
Tribal Areas

Presence of district councils.

Hill Area of Manipur

Darjeeling District of Governed by the Darjeeling Gorkha Hill Council.

West Bengal

*Same are also exempted under the 74th CAA, 1992.

Compulsory Provisions Voluntary Provisions

1. Organization of Gram Sabha 1. Reservation provision for backward
classes
2. Creation of three tier Panchayati Raj 2. Giving representation to MPs and MLAs
at District, Block and Village Level. in these bodies.
3. Direct Elections to all the seats in 3. Providing Panchayats financial
Panchayati raj at the Village level autonomy and powers to levy taxes, fees
should be conducted through etc.
territorial constituencies in Panchayat
areas.
4. Indirect elections to the post of 4. Making plans for economic development
chairperson of Panchayati raj and social justice.
institutions at the intermediate and
district levels.
5. Voting rights of the chairperson and 5. Giving powers and authority to the
other members of a panchayat elected Panchayats to make them institutions of
directly or indirectly. self-government.
6. Minimum age for fighting for
elections to panchayat is 21 years.
7. Reservation of seats for SC/ST in
panchayat be in proportion to their
population.
8. Reservation of 1/3rd seats for women
in panchayat at all three levels.
9. The 5 years of fixed term for
panchayat at all levels and holding
fresh elections within 6 months in the
event of supersession of any
panchayat.
10. State election commission should be
constituted by each state to carry out
elections and state finance
commission should be constituted
every 5 years to review financial
positions of the panchayat.

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Panchayat Extension to Scheduled Areas, Act, 1996 (PESA Act, 1996)

The Panchayat (Extension to Scheduled Areas) Act, 1996, commonly known as the PESA Act, was
enacted to extend the provisions of Part IX of the Constitution, which relates to Panchayats, to the
Scheduled Areas as defined in the Fifth Schedule of the Constitution. This act aims to ensure
self-governance for the tribal communities living in these areas through Gram Sabhas and Panchayats.

· Features of the PESA Act, 1996:

1. Empowerment of Gram Sabha:
o Decision-Making Authority: The Gram Sabha is given the power to approve
plans, programs, and projects for social and economic development before
implementation in the village.
o Consultation in Land Acquisition: Mandatory consultation with the Gram
Sabha or Panchayat at the appropriate level before land acquisition and
resettlement.
o Control over Natural Resources: The Gram Sabha has the authority to
manage and control minor water bodies, minor forest produce, and minor
minerals.
o Regulation of Markets: The Gram Sabha has the power to manage village
markets and control the sale and consumption of intoxicants.
2. Protection of Tribal Interests:
o Preservation of Traditions: The act recognizes and protects the traditional
rights, customs, and cultural practices of tribal communities.
o Prevention of Land Alienation: The Gram Sabha is empowered to prevent
the alienation of tribal land and restore unlawfully alienated land to the
rightful owners.
o Dispute Resolution: The Gram Sabha has the authority to resolve local
disputes through customary methods.
3. Decentralized Governance:
o Autonomy: The PESA Act ensures that Panchayats at higher levels do not
assume the powers and authority of Panchayats at lower levels or of the
Gram Sabha.
o Legal Recognition: Traditional tribal institutions and customary laws are
given legal recognition, integrating them with statutory Panchayati Raj
institutions.
4. Inclusive Participation:
o Representation: Ensures the representation of Scheduled Tribes in
Panchayats, promoting inclusive and participatory governance.
o Sustainable Development: Empowers local communities to manage
resources sustainably, reflecting their needs and priorities.
· Significance of the PESA Act, 1996:
1. Empowerment of Tribal Communities:
o Self-Governance: The act empowers tribal communities by providing them
with a greater role in self-governance, enabling them to make decisions that
affect their lives directly.
o Control Over Resources: Grants tribal communities control over the
management and utilization of natural resources, safeguarding their
livelihoods and preventing exploitation by external entities.
2. Protection of Tribal Culture and Traditions:

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o Cultural Preservation: The act acknowledges and strives to protect the

unique social and cultural practices of tribal communities, ensuring that
development does not erode their traditional way of life.
3. Decentralized Decision-Making:
o Localized Governance: Decentralizes decision-making to the Gram Sabha
and Panchayats, ensuring that governance is more localized and contextually
relevant to the needs of the tribal population.
4. Legal Safeguards
o Land Rights: Provides legal safeguards against the alienation of tribal lands
by requiring that any transfer of land in Scheduled Areas must be approved
by the Gram Sabha.
o Traditional Institutions: Provides legal recognition to traditional tribal
institutions and customary laws, maintaining social harmony and effective
conflict resolution within the community.
5. Addressing Historical Injustices:
o Rectifying Marginalization: Addresses historical injustices faced by tribal
communities, including marginalization, exploitation, and lack of
representation, by ensuring their participation in governance and
development processes.
6. Sustainable Development:
o Environmental Stewardship: Promotes sustainable development by giving
control over natural resources to local communities, who have historically
lived in harmony with nature.
· Challenges and Implementation Issues: Despite its significant potential, the PESA Act faces
several challenges in implementation:
o Partial Implementation: Many states have not fully implemented the
provisions of the PESA Act, leading to inconsistencies and gaps in
governance.
o Lack of Awareness: There is often a lack of awareness among tribal
communities about their rights under the PESA Act.
o Bureaucratic Resistance: Bureaucratic apathy and resistance to change have
hindered the effective implementation of the act.
o Political Will: The absence of strong political will to empower tribal
communities has also been a significant barrier.

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Urban Local Government

Overview:

Type Description

Established for large cities and metropolitan areas for e.g., Mumbai, Delhi, Kolkata
etc. They are established in the states by the act of the concerned state legislature,
and in the UT by the act of the parliament. It has 3 authorities namely: The council,
the Standing Committees and the Commissioner.

1. The council consists of councillors directly elected by the people, as well

as nominated persons having ‘knowledge or experience of municipal
administration.’ The council is headed by the Mayor.
2. The Standing Committees are made to ease the working of the council.
Municip
3. The Commissioner is responsible for implementing the directions of the
al
council. Such authority is selected by the state government.
Corpora
tion They handle extensive civic functions and services.

Found in smaller urban areas. Also known as municipal councils, municipal boards, or
Municip municipal committees. These are established in the same manner as the Municipal
ality Corporation, they too have 3 authorities.

Nagar
Panchay
at Set up for areas in transition from rural to urban.

Established by a notification in the government gazette. Appointed for

Notified fast-developing towns that lack basic amenities. Members are nominated by the state
Area government. It is a wholly nominated body, including the chairman who are
Committ nominated by the state government. NOT AN ELECTED OR A STATUTORY
ee BODY.

Town
Area Operates in small towns with limited functions like street lighting and drainage. It can
Committ be wholly elected or wholly nominated by the state government or partly elected and
ee partly nominated.

Established for civilian populations in cantonment areas, managed by the central

Canton
government. Comes under the defence ministry, it is established as per the provisions
ment
of the Cantonment Act of 2006. The cantonment board comprises partly elected and
Board
partly nominated members. The military officer responsible for commanding the

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station is an ex-officio president of the board. The president of India chooses the
Executive officer of the cantonment board.

Established by large public enterprises. Provides basic facilities to staff and workers
Townshi in industrial areas. No elected members, managed bureaucratically. Has no elected
p members.

Port Formed by the act of the Parliament. These are established in port areas. Manages port
Trust areas and provides civic amenities. Consists of elected and nominated members.

Special Also known as ‘Single purpose bodies’/ ‘Functional local bodies’. Undertakes
Purpose specific functions like housing, pollution control, or transportation. Function-based,
Agency not area-based.

Legislative Framework: The 74th Constitutional Amendment:

The 74th Constitutional Amendment Act of 1992 is a significant reform aimed at

strengthening urban local governance in India. It provides a constitutional framework for
decentralizing powers and responsibilities to urban local bodies (ULBs), ensuring that they
function as effective institutions of local self-government.
· Salient Features of the 74th Constitutional Amendment Act:
1. Constitutional Status:
o The amendment added Part IX-A to the Constitution, covering
Articles 243-P to 243-ZG, which deals with municipalities. It
further introduced the 12th Schedule, listing 18 functional items for
municipalities, including urban planning, regulation of land use,
water supply, public health, and sanitation.
2. Application to Union Territories: Although applicable to UT, the
President can direct any exceptions of modifications.
3. Types of Municipalities: The act enumerates the following 3 types of
municipalities in every state.
o Nagar Panchayat: For areas in transition from rural to urban.
o Municipal Council: For smaller urban areas.
o Municipal Corporation: For larger urban areas.
o Exception: If a certain urban area in which municipal services are
being provided by an industrial establishment, then the governor
can specify that area as an ‘Industrial township’.
4. Composition and Elections:
o Members of municipalities are elected directly by the people.
o Each municipal area is divided into territorial constituencies known
as wards.

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o The manner of election of chairpersons of municipalities is left to

the state legislatures.
o There is provision for the representation of persons with special
knowledge (without the right to vote, in meetings), members of
Parliament, and state legislatures in municipalities.
5. Disqualifications: A person can be disqualified to take part in the election
if that person is so disqualified (a) under any law for the time being in
force for the purpose of elections to the legislature of the state concerned,
(b) under any law made by the state legislature. However, no person shall
be disqualified on the ground that he is less than 25 years of age if he has
attained the age of 21.
6. Reservation of Seats:
o Seats are reserved for Scheduled Castes (SCs) and Scheduled Tribes
(STs) in proportion to their population in the municipal area.
o Not less than one-third of the total seats are reserved for women,
including seats reserved for SC/ST women.
o States may provide reservations for backward classes.
7. Duration of Municipalities:
o The term of a municipality is five years from the date of its first
meeting.
o Elections must be conducted before the expiry of the term. If
dissolved earlier, elections must be held within six months.
8. Powers and Functions:
o States are required to devolve powers and responsibilities to
municipalities to enable them to function as institutions of
self-government.
o These include the power to prepare and implement plans for
economic development and social justice and implementing
schemes related to the 18 items listed in the Twelfth Schedule.
9. Ward Committees & Other Committees:
o A ward committee shall be constituted consisting of ‘one or more’
wards.
o Ward Committees are mandatory for municipalities with a
population of 300,000 or more.
o These committees enhance local participation and ensure better
governance at the ward level.
o In addition to the ward committees, the state legislatures are allowed
to make provisions for other committees. The chairperson of such a
committee may be made a member of such municipality.
10. Metropolitan and District Planning Committees:
o Metropolitan Planning Committees: Every Metropolitan area shall
have such a committee to prepare development plans, which shall

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be forwarded to the state government by the chairperson of such

committee. 2/3rd of the members of the committee should be
elected by the elected members of the municipalities and the
chairpersons of the panchayats in that metropolitan area. The state
legislature shall make provisions in relation to: the Composition,
Manner of election and functions of such committee.
o District Planning Committees: Every state shall constitute a
district planning committee at the district level, to consolidate plans
prepared by Panchayats and municipalities in the district, and the
Chairman shall forward the consolidated plan to the state
government. The state legislature shall make provisions in relation
to: Composition, manner of election and functions of such
committee. Further, 4/5th of the members of the committee should
be elected by the elected members of district panchayat and
municipalities.
11. State Finance Commission: Each state (Governor) must establish a State
Finance Commission every five years to review the financial position of
municipalities and recommend the distribution of financial resources
between the state government and ULBs. The commission further has the
duty to recommend measures needed to improve the financial position of
the ULBs. It also deals with any other matter referred to by the governor in
the interest of the ULBs. The report and recommendations of the
commission is placed before the state legislature by the Governor.
12. State Election Commission: Each state must establish a State Election
Commission, to conduct free, fair, and regular elections in the ULB. Such
commission shall consist of a ‘state election commissioner’(to be
appointed by the governor). The commission may make provisions with
respect to all matters relating to elections to the ULB.
13. Audit of Accounts: States can make provisions for the audit of
Municipality accounts to ensure financial accountability.
14. Continuance of Existing Laws: Existing laws relating to Municipalities
continue to be in force until amended or repealed, or until the expiration of
one year from the commencement of the amendment.
15. Bar on Judicial Interference: Courts are barred from interfering in
electoral matters related to Municipalities, ensuring the autonomy of the
election process. It is declared that the “validity of any law relating to
delimitation of constituencies or the allotment of seats to such
constituencies cannot be questioned in a court of law.”
· Significance of the 74th Constitutional Amendment Act:
1. Decentralization of Governance:
o The amendment empowers urban local bodies by devolving powers
and responsibilities, making governance more localized and
responsive.
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o It encourages citizen participation in decision-making processes,

enhancing accountability and transparency.
2. Improved Service Delivery:
o Municipalities can address local issues and infrastructural needs
more effectively, improving public service delivery.
o It supports sustainable urban development and better quality of life
by promoting local economic growth.
3. Inclusivity and Representation:
o Reservation of seats for marginalized groups ensures their
participation and representation in governance.
o Mechanisms like ward committees foster community involvement in
urban management.
4. Financial Autonomy:
o Municipalities have the authority to levy taxes and collect revenue,
ensuring financial independence and better resource management
and mobilization.
o Via the state finance commission, a structured approach to financial
devolution and resource allocation is provided.
5. Institutional Framework:
o The establishment of State Election Commissions ensures regular
and fair elections, promoting democratic governance.
o Metropolitan and District Planning Committees ensure
coordinated and integrated urban development.
6. Legal and Constitutional Safeguards:
o The amendment brings municipalities under the purview of
justiciable constitutional provisions, ensuring their establishment
and functioning as per the constitutional mandate.

Impact of ‘Local Self-Government’ in India

Local self-government in India, through the Panchayati Raj Institutions (PRIs) and Urban
Local Bodies (ULBs), has had a profound impact on the country's governance structure.

Positive Impacts:

1. Democratic Decentralization: Local self-government has significantly promoted

democratic decentralization by empowering local bodies to make decisions on issues directly
affecting their communities. This has led to enhanced citizen participation in governance
processes, ensuring that local needs and preferences are better addressed.

2. Improved Governance and Accountability: Local governments have brought

governance closer to the people, making it more responsive and accountable. The Gram
Sabha, for instance, acts as a forum for social audits, allowing villagers to review and
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question the performance of their elected representatives. This proximity fosters transparency
and makes it easier for citizens to hold their representatives accountable.

3. Socio-Economic Development: Local self-governments have played a crucial role in

socio-economic development by implementing local development projects and managing
resources. They have been instrumental in executing schemes related to education,
healthcare, infrastructure, and social welfare, tailored to local needs.

4. Empowerment of Marginalized Groups: The reservation policies for women and

Scheduled Castes/Scheduled Tribes in local bodies have empowered these groups by
providing them with a platform to participate in decision-making processes. This has led to
greater social inclusivity and equity.

Challenges:

1. Financial Constraints: Despite the constitutional provisions, local bodies often face
financial constraints due to inadequate funds and over-reliance on state and central
government grants. The recommendations of the State Finance Commissions are not
binding, leading to inconsistent financial support.

2. Political Interference: Political interference from higher levels of government can

undermine the autonomy of local bodies. MPs and MLAs often influence local governance,
leading to conflicts and reduced effectiveness of local institutions.

3. Capacity Building: Many local bodies lack the necessary administrative and technical
capacity to effectively carry out their functions. This is exacerbated by inadequate training
programs and a shortage of skilled personnel.

4. Corruption and Bureaucratic Hurdles: Corruption and bureaucratic inefficiencies

further impede the functionality of local self-governments. These issues can lead to
misallocation of resources and hinder the implementation of development projects.

Potential Improvements:

1. Enhancing Financial Independence: To improve the effectiveness of local

self-governments, it is crucial to enhance their financial independence. This can be achieved
by ensuring a more substantial and predictable flow of funds through binding
recommendations from State Finance Commissions and enabling local bodies to generate
their own revenue through local taxes and fees.

2. Strengthening Administrative Capabilities: Investing in capacity-building programs for

local officials and representatives can enhance the administrative capabilities of local bodies.
This includes training in governance, financial management, and technical skills required for
effective local administration.

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3. Reducing Political Interference: Measures should be taken to minimize political

interference in local governance. This can involve clear delineation of roles and
responsibilities between different levels of government and ensuring that local bodies have
the autonomy to make decisions independently.

4. Promoting Transparency and Accountability: Strengthening mechanisms for

transparency and accountability, such as regular audits, public disclosure of financial records,
and active participation of citizens in decision-making processes, can help curb corruption
and improve governance outcomes.

Sources of Funds: for the Local Self-Government: Critical Analysis

Urban Local Bodies (ULBs): Urban Local Bodies (ULBs) in India, which include municipal
corporations, municipal councils, and nagar panchayats etc. play a crucial role in urban
governance and service delivery. Their financial resources come from a combination of
own-source revenues and external funding.
Own Source Revenue: ULBs generate their own revenue through-
● Tax Revenues: Property tax is a significant source, along with other taxes like octroi,
professional tax, and entertainment tax.
● Non-Tax Revenues: These include user charges for services (water supply, sewage,
etc.), parking fees, and fines.
External Funding: Despite having own-source revenues, ULBs heavily depend on external
funding due to inadequate internal revenue generation. External funding sources include:
● State Finance Commission (SFC) Transfers: Mandated to recommend the
distribution of financial resources between the state and local bodies.
● Grants-in-Aid: These are discretionary transfers from the state and central
governments, often tied to specific projects or general development goals.
● Borrowings: ULBs can borrow funds through municipal bonds or loans from higher
tiers of government.
Panchayati Raj Institutions (PRIs): Panchayati Raj Institutions are responsible for local
governance in rural areas. They operate at three levels: Gram Panchayat, Panchayat Samiti,
and Zila Parishad.
Own Revenue Sources: PRIs have limited own-source revenue capabilities: -
● Tax Revenues: These include taxes on land, tax on non-agricultural land, taxes on
fairs/festivals, but they contribute a meagre 1% of the total revenue.
● Non-Tax Revenues: These are primarily from fees, fines, fee on usage of panchayat
shelter, fee on using common use resources like grazing land, fee on markets &
weekly bazaars, user charges for hospitals and schools, street cleaning fee etc. and
interest earnings, contributing slightly more than tax revenues but still minimal.

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External Funding: PRIs are predominantly funded through grants from the central and state
governments:
● Central Government Grants: These form the bulk of PRI funding, accounting for
about 80% of their revenue. These grants are often tied to specific schemes. [based on
the recommendations of the Central Finance Commission as per Article 280 of the
Constitution].
● State Government Grants: These grants make up about 15% of PRI revenues and
are similarly tied to specific projects or general development goals. [based on the
recommendations of the State Finance Commission as per Article 243-I].
● Performance-Based Grants: Some grants are linked to the performance and
efficiency of PRIs in implementing projects and managing resources.
● Backward Regions Grant Funds (BRGF): Programme administered by the Ministry of Panchayati
Raj is an Additional Central Assistance (ACA) Scheme.

Critical Analysis
Urban Local Bodies (ULBs):
Challenges:
1. Inadequate Financial Devolution:
○ The devolution of funds to ULBs is significantly lower compared to other
developing nations. For instance, South Africa allocates 2.6% of GDP to its
cities, whereas India allocates only 0.5%. This inadequate fiscal support
affects urban productivity and quality of life, limiting ULBs' ability to provide
essential services and maintain infrastructure.
2. Revenue Generation Constraints:
○ The introduction of the Goods and Services Tax (GST) has subsumed several
local taxes, such as octroi and entertainment tax, leading to significant revenue
losses for ULBs. Property tax, a major source of revenue, is poorly
administered and undervalued, resulting in one of the world's lowest property
tax to GDP ratios.
3. Dependence on Grants:
○ ULBs are heavily dependent on discretionary grants and intergovernmental
transfers, which are often delayed and inadequate. This dependence
undermines their financial autonomy and planning capabilities.
4. High Revenue Expenditure:
○ A significant portion of ULBs' budgets is spent on salaries, pensions, and
administrative expenses, leaving little for capital expenditure and
infrastructure development.
5. Lack of Fiscal Autonomy:
○ State governments exercise elaborate controls over ULBs' authority to levy
taxes, set rates, grant exemptions, and borrow funds. This lack of fiscal

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autonomy limits ULBs' ability to generate and manage their own resources
effectively.
Recommendations:
1. Enhancing Revenue Sources:
○ ULBs should explore new revenue streams, such as municipal bonds and value
capture mechanisms, to enhance their financial base.
○ Improving property tax administration and expanding the tax base can
significantly increase own-source revenues.
2. Strengthening Fiscal Autonomy:
○ Reducing state control and allowing ULBs greater autonomy in financial
matters can enhance their effectiveness.
○ Increasing intergovernmental transfers to urban areas can provide
much-needed fiscal support.

3. Capacity Building:
○ Investing in training and hiring skilled personnel can improve service delivery
and governance.
○ Establishing Metropolitan Planning Committees can ensure coordinated urban
development and better resource utilization.
Panchayati Raj Institutions (PRIs):
Challenges:
1. Inadequate Financial Resources:
○ PRIs generate only about 1% of their revenue through local taxes, with the
majority of their income coming from central and state government grants.
This heavy reliance on external funding limits their financial independence
and ability to plan and execute local development projects.
2. Delayed and Insufficient Grants:
○ Delays in the release of funds and non-receipt of funds under key schemes
severely impact PRIs' functioning. The grants provided are often insufficient
to meet the growing responsibilities of PRIs.
3. Lack of Fiscal Autonomy:
○ PRIs lack the authority to levy and collect taxes effectively, with many states
not devolving sufficient financial powers to them. This lack of autonomy
hampers their ability to generate own-source revenues and manage their
finances independently.
4. Capacity and Infrastructure Constraints:
○ PRIs often lack adequate training, support staff, and basic infrastructure,
affecting their ability to deliver services efficiently.
○ The multiplicity of agencies and lack of coordination among them lead to
duplication of efforts and inefficient implementation of development
programs.

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Recommendations:
1. Enhancing Financial Resources:
○ Ensuring timely and adequate flow of funds from central and state
governments, along with promoting financial autonomy, can empower PRIs.
○ Encouraging PRIs to generate own-source revenues through local taxes, user
charges, and innovative financing mechanisms can reduce their dependence on
grants.
2. Capacity Building and Training:
○ Implementing comprehensive training programs for elected representatives
and functionaries can enhance their governance skills and effectiveness.
○ Improving administrative data quality and establishing transparent scoring
systems can foster accountability and performance improvement.
3. Strengthening Fiscal Autonomy:
○ Reducing bureaucratic interference and political influence can enable PRIs to
exercise their powers and functions independently.
○ Implementing measures to enhance financial autonomy and sustainability, as
recommended by the RBI, can improve PRIs' financial position.

Power Tussle: State v. Local Self-Government

The reluctance of Indian states to empower urban and rural local bodies both functionally and
financially has led to a significant power tussle between state governments and local
self-governments. This tension undermines the effectiveness of local governance, which is crucial for
addressing grassroots issues and fostering democratic decentralization.

Challenges in Empowerment: Despite the available constitutional provisions for the local
self-government in India, several challenges persist:
1. Functional Autonomy:
○ State governments often retain control over key functions that should be devolved to
local bodies. For instance, urban planning, water supply, and slum improvement are
areas where local bodies have limited decision-making power.
○ States have created parallel structures for implementing projects, which undermines
the authority of local bodies.
2. Financial Autonomy:
○ Local bodies lack financial independence. The total revenue of all Urban Local
Bodies (ULBs) in India is only about 1% of the country's GDP, compared to 5% in
Brazil and 6% in South Africa.
○ The recommendations of State Finance Commissions, which are supposed to ensure
financial devolution, are often not implemented.
3. Political Interference:
○ Political interference from state-level politicians and vested interests hampers the
effective functioning of local bodies.

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○ The involvement of Members of Parliament (MPs) and Members of Legislative

Assemblies (MLAs) in the functioning of Panchayats can create conflicts with local
leaders.

Implications of the Power Tussle: The reluctance of states to empower local bodies has several
adverse effects:
● Unplanned Urbanization: The World Bank has described India's urbanization as “messy and
hidden”- largely due to the lack of effective local governance.
● Dependence on Higher Governments: Local bodies remain heavily dependent on state and
central governments for funds and decision-making, limiting their ability to address local
issues independently.
● Ineffective Service Delivery: The lack of functional and financial autonomy hampers the
ability of local bodies to deliver public services efficiently, affecting the quality of life of
residents.

Case Studies and Examples:

● Delhi: The governance battle between the Union and the Delhi government highlights the
complexities of power-sharing in a federal structure. Despite having a locally elected
government, Delhi's administration is often overshadowed by the Union government through
the Lieutenant Governor.
● Kerala: Kerala's relatively successful management of the COVID-19 pandemic has been
attributed to its decentralized polity. However, even in Kerala, ULBs face financial constraints
and require further empowerment.

Suggestions for Improvement: To address these challenges, several measures can be undertaken:
● Clear Definition of Functions: Clearly delineate the functions of each level of local
government to avoid overlaps and conflicts.
● Strengthening Financial Autonomy: Implement the recommendations of State Finance
Commissions and explore alternative funding options like value capture financing.
● Capacity Building: Enhance the administrative capabilities of local bodies through training
programs and adequate staffing.
● Reducing Political Interference: Establish mechanisms to minimize political interference
and ensure transparent, accountable governance.

15th Finance Commission Recommendation: Local Self-Government: Critical Analysis

The 15th Finance Commission of India, chaired by N.K. Singh, submitted its report for the
period 2021-26, which includes significant recommendations regarding local
self-government. The report addresses the financial needs and governance structures of local
bodies, both rural and urban, to ensure their effective functioning and service delivery.
Grants to Local Governments:
· This includes both rural and urban local governments, with a total allocation of
₹4.36 lakh crore over the period from 2021 to 2026. This is intended to empower

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local bodies by providing them with the necessary financial resources to fulfil
their functions effectively.
● The commission recommended grants (both tied and untied grants) to Rural Local
Bodies (RLBs) to improve basic services and infrastructure. This includes funds for
sanitation, drinking water, and maintenance of community assets.
● Urban Local Bodies (ULBs) were allocated grants to enhance urban infrastructure,
including water supply, sewerage, and solid waste management systems.
Recognizing the growing importance of urban areas, the Commission recommended
reforms to strengthen urban local bodies. This includes measures to improve revenue
generation and governance structures, ensuring that urban local bodies can meet the
demands of rapid urbanization.
● Specific grants were recommended to be channelled through local governments to
improve primary health infrastructure, especially in rural areas.
● The commission introduced performance-based grants to incentivize better
governance and service delivery by local bodies.
Empowerment and Capacity Building:
● The report emphasized the need for strengthening State Finance Commissions
(SFCs) to ensure timely and effective devolution of funds to local bodies.
● Recommendations were made for capacity-building programs for local government
officials to enhance their administrative and financial management skills.
Disaster Risk Management:
● Grants were recommended for empowering Panchayati Raj Institutions (PRIs) to
manage disaster preparedness and response at the local level.

Critical Analysis
Strengths:
● By increasing the grants and introducing untied funds, the recommendations aim to
enhance the financial autonomy of local governments, allowing them to address local
issues more effectively.
● The emphasis on tied grants for sanitation and drinking water aligns with national
priorities and Sustainable Development Goals (SDGs), ensuring that critical services
are adequately funded.
● The introduction of performance-based grants is a positive step towards improving
accountability and efficiency in local governance. This can lead to better service
delivery and increased citizen satisfaction.
● Empowering local bodies in disaster management ensures quicker and more efficient
response to emergencies, reducing the impact on communities.
Challenges

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● One of the major challenges is the capacity of local bodies to effectively utilize the
increased funds. Many local governments lack the administrative and technical
capacity to plan and implement projects efficiently.
● There is a risk that performance-based incentives may favor already well-performing
local bodies, potentially widening the gap between different regions. This could lead
to inequitable development, with poorer regions lagging behind.
● While increased grants are beneficial, there is a concern that over-reliance on central
transfers could undermine the fiscal independence of local bodies. Encouraging local
revenue generation is crucial for sustainable financial health.
● Effective monitoring and evaluation mechanisms are necessary to ensure that funds
are used as intended and that performance benchmarks are met. This requires robust
systems and transparency in operations.

Problems with ‘Local Self-Government’ in India

Local self-government in India, encompassing both Panchayati Raj Institutions (PRIs) and Urban
Local Bodies (ULBs), faces several challenges that hinder its effective functioning. These challenges
span across financial, administrative, political, and social dimensions.

Challenges Faced by Panchayati Raj Institutions (PRIs):

1. Financial Challenges:

● PRIs often face financial constraints due to insufficient funds devolved from state
governments. This limits their ability to execute local development projects effectively.
● Many PRIs are heavily dependent on state grants, which are often delayed or inadequate,
affecting their financial autonomy and planning capabilities.
2. Administrative Challenges:

● There is a severe shortage of skilled support staff, such as secretaries, junior engineers, and
data entry operators, which hampers the functioning and service delivery of PRIs.
● Many PRIs lack basic infrastructure such as office buildings, internet connectivity, and
essential facilities like toilets and drinking water, thus suffering from infrastructural
deficiencies.
3. Political and Bureaucratic Interference:

● PRIs often face interference from higher levels of government and bureaucracy, undermining
their autonomy and decision-making powers.
● The creation of parallel bodies for specific functions often overlaps with the roles of PRIs,
leading to confusion and inefficiency.
4. Social and Gender Biases:

● Despite reservations for women, the real power often remains with male relatives (Sarpanch
Pati/ Pradhan Pati Syndrome) undermining the effectiveness of women representatives.

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● Ingrained social hierarchies and prevalent discrimination can hamper the effectiveness and
functioning of PRIs, particularly in the arena of women's representation/ participation.
5. Training:

● Lack of training coupled with a lack of skill development programs for the elected
representatives and associated functionaries hamper their abilities to perform their said roles
in an effective manner.
Challenges Faced by Urban Local Bodies (ULBs):

1. Financial Challenges:

● ULBs have limited sources of revenue and often fail to fully exploit potential sources like
property taxes, thus suffering from low revenue generation.
● ULBs rely heavily on transfers from state and central governments, which are often
inadequate and delayed.
● The introduction of GST has subsumed many local taxes, reducing the revenue-raising
capacity of ULBs.
2. Administrative Challenges:

● There is a significant shortage of skilled personnel in ULBs, with many positions remaining
vacant, affecting their operational efficiency.
● The presence of multiple agencies with overlapping functions leads to poor coordination
and inefficiency in urban governance.
3. Political and Bureaucratic Control:

● State governments often exercise excessive control over ULBs, limiting their autonomy and
ability to function independently.
● Corruption in urban local governance, such as in contract awards, hampers effective
functioning and erodes public trust.
4. Social and Gender Issues:

● Similar to the Sarpanch Pati syndrome in PRIs, the real power in ULBs often lies with male
relatives (Corporator Pati Syndrome) of elected women representatives, undermining their
authority.
5. Unplanned Urbanization:

● ULBs often struggle with unplanned urbanization, leading to issues like slum growth,
traffic congestion, and inadequate public facilities. Poor urban planning also results in
environmental issues such as pollution and loss of green spaces.

Way Forward

To address these challenges and strengthen local self-government in India, several measures
can be taken:
For Panchayati Raj Institutions (PRIs):
● Ensuring prompt and sufficient funding for PRIs, coupled with transparency and
responsibility in financial oversight.

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● Developing extensive training initiatives for elected officials and staff to improve
their governance abilities and expertise.
● Enhancing the independence of PRIs by reducing bureaucratic intervention and
political pressure.
● Fostering inclusive governance by advocating for women's involvement and tackling
social prejudices.

For Urban Local Bodies (ULBs):

● Enhancing the capacity of ULBs to raise their own revenue through property taxes
and other local taxes.
● Filling vacant positions and improving the skill levels of staff through training and
capacity-building programs.
● Ensuring greater autonomy for ULBs by reducing excessive state control and
interference.
● Implementing comprehensive and sustainable urban planning to address issues of
unplanned urbanization and environmental degradation.
● Strengthening oversight mechanisms to combat corruption and improve transparency
in urban governance.

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Theme 9: Closure

PREAMBLE OF THE INDIAN CONSTITUTION

The Preamble of the Indian Constitution serves as an introductory statement that outlines the guiding
principles, philosophy, and objectives of the Constitution. It reflects the intentions of the framers and
provides a framework for interpreting the Constitution. It is based on the Objectives Resolution,
which was moved in the Constituent Assembly by Jawaharlal Nehru on 13 December 1946,
accepted on 22 January 1947 and adopted by the Constituent Assembly on 26 November 1949.
Meaning and Scope of keywords in the Preamble:
1. We, the People of India: This phrase signifies that the Constitution derives its authority from
the citizens of India, emphasizing popular sovereignty.
2. Sovereign: India is an independent entity, not subject to any external authority. It has the power
to conduct its internal and external affairs autonomously.
3. Socialist: This term was added by the 42nd Amendment in 1976, indicating the commitment
to achieving social and economic equality through democratic means, promoting a mixed
economy.
4. Secular: Also added by the 42nd Amendment, this term means that the state treats all religions
equally and does not favour or discriminate against any religion. (Watchful Secularism).
5. Democratic: India has a system of government where representatives are elected by the people,
ensuring political, social, and economic democracy.
6. Republic: The head of state, the President, is elected, highlighting that India is not a monarchy.
7. Justice: The Preamble aims to secure social, economic, and political justice for all citizens.
8. Liberty: It guarantees freedom of thought, expression, belief, faith, and worship.
9. Equality: It ensures equality of status and opportunity for all citizens.
10. Fraternity: Promotes a sense of brotherhood, ensuring the dignity of the individual and the
unity and integrity of the nation.
Amendment of the Preamble:
● Amenability: The Preamble can be amended, as demonstrated by the 42nd Amendment in
1976, which added the words "Socialist" and "Secular" and changed "unity of the nation"
to "unity and integrity of the nation."
● Kesavananda Bharati Case (1973): The Supreme Court held that the Preamble is a part of
the Constitution and can be amended, but the basic structure of the Constitution cannot
be altered. This case established the doctrine of the basic structure, which protects the core
principles of the Constitution from being amended.
Enforceability and Legal Status:
Non-Enforceable: The Preamble itself is not enforceable in a court of law. It does not confer
any rights or impose duties but serves as a guiding principle for interpreting the Constitution.
Interpretative Tool: The Preamble is used by the judiciary to understand the intentions of the
framers and to interpret ambiguous provisions within the Constitution.
Is the Preamble a Part of the Constitution?
Part of the Constitution: The Preamble is considered a part of the Constitution, as affirmed by the
Kesavananda Bharati case. The Preamble of the Indian Constitution encapsulates the fundamental
values and principles that guide the nation. While it is not legally enforceable, it plays a crucial role in
constitutional interpretation and reflects the aspirations and objectives of the Indian state.

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Applicability of Article 19: In R.C. Cooper vs. Union of India 1970, the Apex Court held that, Article 19 is available to the Citizens and against the
actions of the State and that the freedoms of Article 19 cannot be claimed by a foreigner.

Article 19: Protection of certain rights regarding freedom of speech, etc.

Art. 19 (1) (a) : Art. 19 (1) (b): Art. 19 (1) (c) : Right to Art. 19 (1) (d): Right to Art. 19 (1) (e): Art. 19 (1) (g):
Right to freedom of Right to assemble form associations or move freely throughout Right to reside and Right to practice any
speech and peaceably and unions or co-operative the territory of India. settle in any part of profession, or to
expression. without arms. societies. the territory of India. carry on any
occupation, trade, or
business.
Reasonable restrictions Reasonable Reasonable restrictions Reasonable Reasonable restrictions
as per Art 19 (2): restrictions as per as per Art 19 (4): restrictions as per Art as per Art 19 (5):
Art 19 (3): 19 (5): Reasonable restrictions as
1. Sovereignty 1. Sovereignty 1. General per Art 19 (6):
& integrity 1. Sovereig & integrity 1. General Public
2. Security nty & 2. Public Order Public Interest 1. General Public
3. Foreign integrity 3. Morality Interest 2. Protection of interest
Relations 2. Public 2. Protection Interest of 2. Regarding
4. Public Order Order of Interest Scheduled educational
5. Decency/ of Tribe. qualification to
Morality Scheduled practice a
6. Contempt of Tribe. profession.
Court 3. Nationalisation
7. Defamation
8. Incitement of
Offence

 Section 144 of the erstwhile CrPC:  The tribals have been permitted to regulate their
 Friendly relations with foreign Magistrate can restrain an assembly, property rights by their customary rules and laws.
states + Incitement to an offence (1st meeting or procession involving the risk of The Inner Line Permit (ILP) system is one such
obstruction, annoyance, or danger to human restriction on free movement that has been
CAA, 1951).
life, health or safety or disturbance of public implemented in certain north-eastern states
 Sovereignty and integrity of India tranquillity or riot or any affray – invoked on (Arunachal Pradesh, Nagaland, Mizoram and
(16th CAA, 1963) many instances. Manipur).
 ‘decency’ + ‘morality’ defined  Section 141 erstwhile IPC: Assembly of five  Restriction on freedom of movement is put by the
in section 292-294 of the erstwhile or more persons becomes unlawful if the order passed by the government under Section 144
IPC. objective is:
 don’t allow anyone to contempt of of erstwhile CrPC along with the Epidemic
i. To resist the execution of any law
court. Contempt of court is defined Disease. (Valid under Art. 19 (5)).
or legal process.
in section 2 of Contempt of Courts ii. To forcibly occupy the property of
Act, 1971. It covers both civil some person.
contempt and criminal contempt as iii. To commit any mischief or
criminal trespass.
well.
iv. To force someone to do an illegal
act.
v. To threaten govt officials on
exercising lawful powers.

 Article 19 (1) (f): Originally, the ‘Right to acquire, hold, and dispose of property’ was one of the fundamental rights under Article
19(1)(f). However, the 44th Amendment Act of 1978 removed this right from the list of fundamental rights and placed it under Article
300A in Part XII as a constitutional right.
 Test of Restrictions under Article 19(2) to 19(6) of the Indian Constitution: - The restriction must be imposed by or under the authority
of a law + The law authorising the restriction must be reasonable, + The restriction imposed must be for a particular purpose or object
envisaged in the specific clauses.

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Article Analysis
Article 19 (1)(a): Right to ‘Freedom of The Supreme Court has held that freedom of speech contains the following rights:
Speech and Expression’  Right to propagate one’s views as well as the views of others. (Freedom of circulation.) [Indian Express v
UOI, 1985]
 Freedom of the press. [Romesh Thappar v State of Madras, 1950]
 Freedom of commercial advertisements. [Tata Press Ltd. Vs. Mahanagar Telephone Nigam Ltd, 1995]
 Right against tapping of telephonic conservation. [People's Union for Civil Liberty versus Union of India,
1997 ]
 Right to telecast, that is, the government has no monopoly on electronic media. [SECRETARY, MINISTRY
OF I & B V. CAB, 1995]
A broader understanding of ‘Right to freedom’ could include a plethora of other rights, such as: -
o Freedom of silence: Right not to speak [Bijoe Emmanuel v. State of Kerala, 1986]
o Right to fly the national flag.
o Right of voters to know the antecedents of the candidates contesting elections.
o Right to express gender identity. [Union of India v. Association For Democratic Reforms,2024]
o Right to post information/videos on the internet/ social media. [Part of Freedom of Press]
o Right of film-makers to exhibit their films. [K.A. Abbas v. Union of India,1952]
o Right to access the internet (right to access to information via the internet) [Anuradha Bhasin v.
Union of India, 2020]
Article 19 (1)(b):Right to assemble peaceably This includes under its ambit: -
and without arms.  Right to hold public meetings, demonstrations and take out processions.
 Permitted only on public land in a peaceful manner and without arms.
 Limitations on Assembly: Does Not Protect Violent, disorderly, riotous assemblies or one that causes a
breach of public peace or involves arms. [ Mohan Singh v State of Punjab, 1962]
 Right does not include Right to Strike. [T.K. Rangarajan v. Government of Tamil Nadu (2003)]
 Article 19(1)(b) has been held to cover the right to hold hunger strike, long as it is assured to be peaceful
without arms and not against any individual or group/community. [IN RE: RAMLILA MAIDAN
INCIDENT 2011]
Article 19 (1)(c): Right to form associations All citizens have the right to form associations or unions or cooperative societies:
or unions or co-operative societies.  Right to Form: Includes Political Parties + companies + partnership firms + societies + clubs + organizations
+ trade unions or anybody of persons. [Supriya Chakraborty v UOI, 2023]
 Right to Continue: Includes the right to continue with the association. [Supriya Chakraborty v UOI, 2023]
 Includes negative right of not to form or join an association or union. [S. Ramakrishnan v. District
Board (1951)]
 Right to obtain recognition of association is not a fundamental right. [Damyanti v. Union of India (1971)]
 Right not to join: The right not to join, also known as the negative right of association. It is recognized and
protected under various legal frameworks and judicial interpretations. The Trade Unions Act, 1926, governs
the registration and regulation of trade unions in India. It provides the legal basis for the formation and
functioning of trade unions but does not mandate compulsory membership for workers. In Re Yamaha Motor
Workers Case, 2012: the Supreme Court affirmed that workers have the choice to join or not join a trade
union, as per Art. 19 (1) (c).

Article- 19(1)(d): Right to move freely  Every citizen has the right to move freely – Interstate and Intrastate movements.
throughout the territory of India.  Objective: Unity of India + promotes national feeling + no parochialism.
 Unreasonable surveillance and domiciliary visits by police not authorized by any law and thus held to be
violative of the right to freedom of movement. [Kharak Singh vs. The State Of U. P. & Others, 1962].
 The judiciary has interpreted that Arrests, imprisonment and preventive detention laws and other forms of
detention do not violate Article 19(1)(d) as long as they adhere to the procedural safeguards.
Article- 19(1)(e): Right to reside and settle in  Every citizen has the right to reside and settle in any part of the territory of India. (stay temporarily or set up
any part of the territory of India. a domicile at any place permanently.)
 Intended to remove internal barriers within the country. (To promote nationalism and avoid narrow-
mindedness.)
 Right to residence and right to movement are complementary to each other.
 In the case of U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd.(1995), it was held by
the Supreme Court that the right to residence under Article 19(1)(e) includes the right to shelter and to construct
houses for that purpose.
Article- 19(1)(g): Right to practice any  Ambit: Very Wide and covers all means of earning one’s livelihood
profession, or to carry on any occupation, trade,
or business.  The term “occupation” means some activity by which a person is occupied or engaged. It would be an activity of a
person undertaken as a means of livelihood or a mission of life. For instance, a journalist has fundamental right to
carry on his or her occupation under Article 19(1)(g). It includes “profession”, “trade” or “business”.
 The term “profession” has been interpreted to mean an occupation requiring the exercise of intellectual skill, often
coupled with manual skill.

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 The term “business” means any activity involving the production, distribution and consumption of wealth and the
production and availability of material services.
 “Trade” is an activity concerning the sale and purchase of goods.

Issues Surrounding Article 19

Freedom of Press and Media Policy:

One of the most contentious areas related to

Article 19 is the freedom of the press. India's press freedom has been under scrutiny, with reports indicating a decline in press freedom
rankings (159th out of 180 countries). This is attributed to: - The concentrated ownership of media houses by politically affiliated individuals,
raising concerns about media independence. Various regulatory bodies, such as the Press Council of India (PCI) and the Central Board of
Film Certification (CBFC), play a role in maintaining journalistic ethics and controlling content. The introduction of the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, adds another layer of control over digital media, with
intermediaries being held accountable for the content shared on their platforms. The 2021 Rules require the intermediary to “publish” rules
and regulations, privacy policy and user agreement for access or usage of its services. The Rules specify restrictions on the types of content
that users are allowed to create, upload, or share. Appeal mechanism against decisions of grievance officers: The 2021 Rules require
intermediaries to designate a grievance officer to address complaints regarding violations of the Rules. Expeditious removal of prohibited
content: The 2021 Rules require intermediaries to acknowledge complaints regarding violation of Rules within 24 hours, and dispose of
complaints within 15 days.

Media Censorship: Censorship in India is a double-edged sword. While it aims to prevent the spread of content that could harm public order
or morality, it often raises concerns about the suppression of free speech. Censorship laws must strike a delicate balance between maintaining
societal harmony and allowing artistic and expressive freedom. The Cinematograph Act, 1952, which governs film censorship, exemplifies
this balance, though it has also faced criticism for overreach, especially with the proposed amendments in 2021 that could increase
governmental control over already certified films.

i. Pros: Censorship prevents disharmony in society by prevention of disclosure of objectionable content that can lead to communal
discord. Since internet censorship can help to curb the large number of illegal activities and internet crimes, it is good for
the stability of society. Censorship can help in maintaining morality in society.
ii. Cons: The practical application of the censorship legislation can end up becoming a tool of moral policing that controls other
people's lives rather than concerning itself with larger public issues.
iii. Way forward:

a. Censorship laws cannot be overly sensitive and should balance the equation between maintaining objective
standards of broadcasting and information dissemination on the one hand and maintaining the fluidity of art,
expression, free speech and expressional creativity on the other.
b. There must be clear rules that require authorities to demonstrate a genuine threat to national security. This
is especially important in the case of terrorism-related legislation, where there is often limited transparency during
the drafting of new powers.

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Right to Protest: The right to protest, protected under

Article 19(1)(a), (b), and (c), allows citizens to express dissent and demand change. However, this right is not absolute for
government employees, who face restrictions under the Central Civil Services (Conduct) Rules and the Essential
Services Maintenance Act. These rules highlight the tension between maintaining public order and respecting individual
rights.

Sedition & Hate Speech:

Right to Internet: In recent years, the right to access the internet has emerged as a crucial aspect of Article 19. The
internet is a vital tool for information, education, and communication. However, internet shutdowns, justified on grounds of
public safety or national security, have become a contentious issue. The Supreme Court's ruling in the Anuradha Bhasin
v UOI (2020), case emphasized that such shutdowns must be proportionate, temporary, and transparent, yet India continues
to lead in the number of internet shutdowns globally.

Right to Information: The right to information, while not explicitly mentioned in Article 19, has been interpreted as integral
to the freedom of speech and expression. The Right to Information Act, 2005, operationalizes this right, enabling citizens to
hold the government accountable and promoting transparency. However, this right, too, is subject to reasonable restrictions,
particularly concerning national security and public order. The RTI Act established the Central Information Commission
and State Information Commissions to oversee the implementation of the right to information.

Same sex marriage & Article 19: Article 19 is not directly related to same-sex marriage, but it has been invoked in discussions
about the right to marry in general. In the Shakti Vahini v. Union of India (2018) case, the Supreme Court observed that when
two adults consensually choose each other as life partners, it is a manifestation of their freedom of choice guaranteed under
Articles 19 and 21 of the Constitution. In the recent Supreme Court verdict on same-sex marriage (October 2023), the
court unanimously ruled that there is no fundamental right to marry. The majority view was that the legislature or Parliament
must decide on bringing in same-sex marriage legislation.

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Abortion and Article 19: Though not directly addressed under Article 19, the right to abortion has been linked to broader
rights under the Constitution, such as privacy and personal liberty under Article 21. The Supreme Court's recognition of
access to abortion services as part of these rights underscores the evolving interpretation of constitutional protections.

Electoral Bonds and Article 19: The Electoral Bonds Scheme, introduced as a political funding reform, has been criticized
for violating the right to information, which is essential for an informed electorate. The Supreme Court struck down the scheme,
emphasizing the need for transparency in political funding to uphold the right to freedom of speech and expression. The scheme
allowed donors to remain anonymous, which the court found to be in violation of the right to information. Voters have
the right to know the sources of political funding to make informed decisions.

Article 19 and Non-state Actors: A landmark ruling in the Kaushal Kishore v State of UP (2023), case expanded the scope
of Article 19 by holding that the state has a duty to protect these rights even against non-state actors. This interpretation
opens the door for constitutional norms to be applied to private entities, potentially broadening the protection of individual
rights in the face of private sector overreach.

Cryptocurrency Regulation: The regulation of cryptocurrency in India also intersects with Article 19, particularly in terms
of the right to carry on any trade or business. The Supreme Court's decision to lift the RBI's ban on cryptocurrency trading in
2020 highlighted the importance of proportionality in restrictions, a principle central to Article 19(6).

***

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Applicability of Article 21:

1. This fundamental right is available to every person: citizens, and foreigners alike.

2. Article 21 can be claimed only when a person is deprived of his life or personal liberty by the State under the meaning of Article 12. Thus, Violation of
the right by Private individual is not within the purview of Article 21.

3. Article 21 is one of only two fundamental rights that cannot be suspended even during a national emergency, ensuring that the right to life and
personal liberty remains inviolable even in extraordinary circumstances. This protection was introduced by the 44th Amendment to the Constitution
in 1978.

The two categories of rights in Article 21 are:

I. Right to Life
II. Right to Personal Liberty

Meaning and Scope of: Right to Life

1. ‘Life’ under Article 21 of the Indian Constitution should not merely be taken as the physical act of breathing. It does not imply continual
toil or a life of simple animal existence. It covers a far wider range of issues, such as the right to a decent standard of Living, the right to
a means of support, the right to health, the right to clean air, etc.
2. The Right to life is necessary to our very existence and without which we cannot exist as humans, the right to life embraces all those
aspects of life that gives a man’s life its meaning, fulfilment, and value. Thus, the essentials, minimum requirements, and fundamental
needs of an individual are derived from the fundamental principle of the Right to life. It would even include the right to protection of a
person’s tradition, culture, heritage, and all that gives meaning to a man’s life.

Meaning and Scope of: Right to Personal Liberty

1. This encompasses freedom from unlawful detention or imprisonment and includes various aspects of personal freedom such as movement, speech,
expression, and association.
2. Liberty in negative sense means absence of restrictions.
3. Positive liberty means freedom with certain restrictions which is necessary for the good of the society. These restraints are necessary so tha t everyone
irrespective of the caste, creed, gender or any other societal factors which restrict a common man could enjoy the liberty.
4. The term ‘Personal liberty’ was examined for the first time in AK Gopalan case (1950): It was held that, ‘Personal Liberty means nothing more than
the liberty of a physical body’. However, in subsequent judgements, a more holistic interpretation has been afforded.

‘Procedure established by Law’ Vs ‘Due Process of Law.’

Timeline: -

1949: During the drafting of the 1950: In A.K. Gopalan v. Union of 1978: The landmark case Maneka Post-1978: Following the Maneka Gandhi case,
India, the Supreme Court of India Gandhi v. Union of India significantly Indian courts began to interpret Article 21 more
Indian Constitution, the phrase
interpreted Article 21 narrowly, transformed the interpretation of liberally, incorporating elements of "due
"procedure established by
stating that as long as the procedure Article 21. The Supreme Court ruled process of law" to protect individual rights
law" was chosen over "due
prescribed by law was followed, the that the "procedure established by against arbitrary state action. This judicial
process of law" to be included in
Article 21. This decision was law could curtail personal liberty, law" must be fair, just, and trend continued, emphasizing that laws must
without the need for it to be just, reasonable, effectively aligning it not only follow the prescribed procedure but
influenced by concerns about
fair, or reasonable. with the American concept of "due also adhere to principles of fairness and
judicial overreach and the
desire to maintain legislative process of law" justice.
supremacy.

1965: The Supreme Court reaffirmed its earlier This case marked the
stance, emphasizing that "procedure established by judiciary's shift towards
law" simply meant adherence to the statutory ensuring that laws
Tabular Analysis: -
procedure, regardless of its fairness or reasonableness. affecting personal liberty
were not arbitrary or
oppressive

Aspect Procedure Established by Law (Adopted from Due Process of Law (Adopted from American
Japanese Constitution) Constitution)

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Definition A law is valid if it is enacted following the correct Ensures that laws are fair, just, and reasonable, in addition to
procedure, regardless of its fairness. following the correct procedure.
Scope Narrow; focuses on procedural adherence. Broad; includes substantive fairness and justice.
Judicial Review Limited to checking if the procedure prescribed by Includes reviewing the fairness, justice, and reasonableness
law is followed. of the law itself.
Risk May uphold unjust laws if they follow the correct Protects against arbitrary and oppressive laws.
procedure.

Various Facets of Article 21

Right to Live with Human Dignity: The Supreme Court has consistently held that the right to life under Article 21 includes the right to live
with human dignity. This encompasses being treated with respect and living free from discrimination and harassment. For example, in the case
of PUDR vs UOI (1982), the non-payment of minimum wages was deemed a violation of this right.

Right to Reputation: In Subramaniam Swamy vs UOI (2016), the Court ruled that reputation is a fundamental aspect of Article 21,
balancing it with the right to free speech. The state is tasked with regulating speech to prevent defamation, as seen in Om Prakash Chautala
vs Kanwar Bhan (2014), where reputation was considered an inseparable facet of the right to life.

Right to Livelihood: The right to livelihood is included under the right to life, as established in Olga Tellis vs Bombay Municipal
Corporation (1985). The Court recognized that pavement dwellers lived on the streets not by choice, but due to involuntary circumstances,
thus protecting their right to livelihood.

Right to a Healthy Environment: The right to a healthy environment is integral to the right to life, encompassing access to clean air and
water, biodiversity preservation, and sustainable food production. This right has been recognized and advocated by the United Nations and
was accepted as a global human right at Stockholm Conference also known as Magna Carta of human environment. The
constitutionalisation of environmental rights began with the 42nd Amendment, incorporating Article 48A, which mandates state
responsibility for environmental protection. Key cases like M.C. Mehta v UOI (1986) and Vellore Citizens Welfare Forum v. Union of India
(1996) have further defined these rights. Key Principles include:

Inter-generational Equity It states that every generation holds Earth in common, therefore its resources should be used judicially and for the common
benefit of all.
Polluter Pays Principle It is a practice in which those who produce pollution bear the costs of managing it to prevent damage to human health or the
environment.
Precautionary Principle When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if
some cause-and-effect relationships are not fully established scientifically. It is the social responsibility of the State to protect
the public from any plausible risk.
Public trust Doctrine It states that resources like water, air, sea and forest have a great importance to the general public that it would be unjustified
to make it the subject of private ownership. It poses a duty on the State to protect such resources for the benefit of all and not
to permit any commercial use of it.
Sustainable Development It states that the State should try to strike a balance between development and environment.
Principle

Right against climate change a distinct fundamental and human right: The Supreme Court of India has recently acknowledged the right
against the adverse effects of climate change as a distinct fundamental and human right. This recognition is based on the constitutionally
guaranteed rights to life and equality under Articles 21 and 14 of the Indian Constitution. The Court highlighted that climat e change adversely
affects these rights, making it necessary to articulate them as a distinct right. A clean and stable environment is essential for the full realization
of the right to life. Climate change impacts health, a component of the right to life, through air pollution, changes in disease patterns, rising
temperatures, droughts, food shortages, storms, and flooding. The judgment was delivered in the context of a case concerning the endangered
Great Indian Bustard. The Court explicitly recognized the right against climate change as distinct from the right to a clean environment,
emphasizing the increasing damage caused by climate change.

Right to Die: The right to die, including euthanasia, has evolved through cases like Smt. Gian Kaur v. State of Punjab (1996) (now revoked)
and Common Cause case (2018), where passive euthanasia was recognized under Article 21. The Mental Healthcare Act, 2017, decriminalized
attempted suicide, reflecting a shift in legal perspectives.

Right to Privacy: Recognized as intrinsic to life and liberty, the right to privacy was affirmed in Justice K.S. Puttaswamy (Retd.) & Anr. vs.
Union of India & Ors. (2017). The Court outlined privacy's facets, including bodily autonomy and informational privacy, while
allowing for restrictions under legality, necessity, and proportionality.
Right to Education: Article 21A, introduced by the 86th Constitutional Amendment, mandates free and compulsory education for children
aged 6 to 14. The Unni Krishnan vs State of Andhra Pradesh (1993) case affirmed education as a fundamental right under Article 21.

Death Penalty: The death penalty's application is limited to the "rarest of rare" cases, as established in Bachan Singh vs State of Punjab
(1980). Recent judgments emphasize reformation over retribution, questioning the morality and efficacy of capital punishment.

Prisoner Rights: Article 21 ensures that prisoners retain basic human rights. The Supreme Court has emphasized fair procedures, speedy
trials, and humane treatment for prisoners, as seen in cases like M H Hoskot vs State of Maharashtra (1978) and Hussainara Khatoon vs
State of Bihar (1979).

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LGBTQ++ Rights: Article 21 has been pivotal in advancing LGBTQ++ rights. Landmark cases like NALSA v. Union of India
(2014) and Navtej Singh Johar v. Union of India (2018) have recognized gender identity and decriminalized same-sex relationships (under
sec. 377 IPC), affirming dignity and privacy for LGBTQ++ individuals.

CASE-LIST FOR ARTICLE 21

Year Case Interpretation & Key Points

1950 A.K. Gopalan v. Union of India Personal Liberty in Art. 21 means liberty of physical body and nothing else. Procedure established by law
in Art. 21 does not mean due process of law.
1963 Kharak Singh v. State of Uttar Pradesh Recognized right to privacy as part of personal liberty under Article 21
1978 Maneka Gandhi v. Union of India Expanded the scope of Article 21 to include the right to live with human dignity and due process
1978 M.H. Hoskot v. State of Maharashtra Supreme Court held that ‘Free legal aid’ is part and parcel of right to life and liberty under Art. 21
1979 Hussainara Khatoon v. State of Bihar Supreme Court held that Right to speedy trial is a fundamental right implicit under Art. 21.
1980 Prem Shankar v. Delhi Administration Supreme Court held that hand-cuffing is prima facie inhuman, arbitrary and unreasonable. Hence it is a
violation of Art. 21 and should be resorted to when there is a clear and present danger of escape.
1981 T.V. Vatheeswaran v. State of Tamil Nadu Supreme Court held that delay in execution of death sentence is violative of Art. 21
1981 Francis Coralie v. Union of India Supreme Court held that ‘Right to live’ is not limited to mere animal existence. It is something more than
just physical survival
1982 People’s Union for Democratic Rights v. Union of India Supreme Court held that ‘Non-payment of Minimum wage’ is a violation of Article 21.
1983 Deena v. Union of India Supreme Court held that hanging by rope doesn’t violate Art. 21
1985 Olga Tellis v. Bombay Municipal Corporation Supreme Court held that Right to life under Article 21 includes ‘Right to livelihood’
1986 Attorney General of India v. Lachma Devi Supreme Court held that execution of death sentence by public hanging is a violation of Art. 21.
1986 M.C. Mehta v. Union of India Supreme Court held that right to clean environment is a fundamental right protected under Art. 21.
Consequently, Supreme Court also gave various directions regarding upkeep of environment and control of
pollution
1989 Parmanand Katara v. Union of India Supreme Court held that all doctors are obliged to extend medical assistance to injured immediately without
asking for legal formalities. This is under the ambit of Right to life as enunciated per Art. 21.
1991 Subhash Kumar v. State of Bihar Right to life under Art. 21 includes right to pollution-free water and air.
1992 Mohini Jain v. State of Karnataka Supreme Court held that Right to education at all levels is a fundamental right flowing from Art. 21.
1993 Unni Krishnan v. State of A.P. Supreme Court held that Right to Education is a fundamental right flowing from Art. 21.
1995 Consumer Education and Research Centre v. Union of India Right to health and medical care is a fundamental right under Art. 21.
1996 Chameli Singh v. State of U.P. Supreme Court held that right to shelter is a fundamental under Art. 21.
1996 Gian Kaur v. State of Punjab Supreme Court held that right to life doesn’t include right to die. (Overturned)
1997 Vishaka v. State of Rajasthan Protection against sexual harassment at workplace stems from Right to life and Right to live with dignity of
Art. 21.
2010 Suchitra Srivastava v. Chandigarh Administration Supreme Court held that right to make reproductive choices is included in Art. 21.
2011 Aruna Ramchandra Shanbaug v. Union of India Supreme Court held that in certain cases ‘Passive euthanasia’ is allowed and can be construed as under Article
21.
2011 Bachpan Bachao Andolan v. Union of India Supreme Court held that sexual, physical and emotional abuse of children detained in a circus is violation
of Art. 21.
2012 Ramlila Maidan v. Home Secretary, Union of India Supreme Court held that right to sleep is a fundamental right under Art. 21 as it is a biological and essential
element and basic necessities of life.
2014 National Legal Service Authority v. Union of India Supreme Court held that self-determination of gender is a part of personal liberty guaranteed under Art. 21.
2017 Justice K.S. Puttaswamy v. Union of India Right to privacy is a fundamental right under Article 21
2018 Common Cause v. Union of India Right to die with dignity, including passive euthanasia, recognized under ‘right to life’ as per Art. 21.
2018 Shakti Vahini v. Union of India Recognized the right to choose a life partner as part of the right to life and personal liberty under Art. 21.
2019 Navtej Singh Johar v. Union of India Supreme Court declared parts of Sec. 377 of the erstwhile IPC unconstitutional in so far as it criminalises sexual
acts between consenting adults of the same sex.
2019 Joseph Shine v. Union of India Supreme Court struck down Sec. 497, of the erstwhile IPC. Court held that it violated women’s right to dignity
and hence it infringed Art. 21.
2021 Union of India v. Onkar Nath Dhar Right to shelter does not mean right to government accommodation.
2021 Laxmibai Chandaragi B. v. State of Karnataka Right to marry a person of one’s choice is integral part of Art. 21
2022 Mohammed Latif Magrey v. Union Territory of J&K Supreme Court held that the right to dignity and fair treatment under Art. 21 of the constitution is not only
available to a living man but also to his body after death. After a body has been buried, it is considered to be
in custody of the law, therefore removal of an interred body is subject to the permission of the court.
2022 Deepika Singh v. CAT Supreme Court held that a woman cannot be declined maternity leave. The court observed that right to
reproduction and child rearing are important facets of one’s right to privacy as enshrined under Art. 21.
2024 M K Ranjitsinh & Ors. v. Union of India & Ors. Right against climate change recognized as a fundamental right. The Supreme Court recognized the right
against adverse effects of climate change as a distinct fundamental right under Articles 21 (right to life) of the
constitution.

***

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Feature United States (Presidential System) India (Parliamentary System)

Dual executive: The President is the

Single executive: The President is both the ceremonial head of state, while the Prime
Executive Structure head of state and the head of government. Minister is the head of government.

Clear separation: The executive, legislative, Interlinked: The executive is drawn from
and judicial branches are separate and the legislature, and the Prime Minister and
Separation of Powers independent. ministers are members of parliament.

The Prime Minister and the cabinet are

The President is not directly accountable to the accountable to the parliament and can be
Accountability legislature and has a fixed term. removed by a vote of no confidence.

The Prime Minister and the cabinet play a

The President has limited legislative role, significant role in legislation and policy-
Legislative Role mainly through veto power. making.

Members of the cabinet are appointed by the

President and can include individuals outside Cabinet members are usually elected
Cabinet Composition the legislature. members of parliament.

Fixed term: The President serves a fixed term No fixed term: The government remains in
and cannot be easily removed except through power as long as it retains the confidence of
Term and Stability impeachment. the parliament.

The Prime Minister can recommend the

dissolution of the lower house and call for
Dissolution of Legislature The President cannot dissolve the legislature. new elections.

Strong checks and balances with distinct Fewer checks between the executive and
Checks and Balances powers for each branch. legislature due to their interdependence.

The Prime Minister is elected by the

The President is elected independently of the majority party or coalition in the
Election of Executive legislature through an electoral college. parliament.

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Definition: A parliamentary system is a form of democratic government where the head of government obtains democratic legitimacy from the support
of the legislature. Parliamentary democracy is a system of government in which the executive branch derives its democratic legitimacy from, and is
directly accountable to, the legislature (parliament).

Key Features of Parliamentary Democracy:

1. Legislative Supremacy:
 The parliament is the supreme legislative body, and its decisions are binding on the executive.
 The executive branch (government) is formed by the party or coalition with the majority in the parliament.
2. Head of Government vs. Head of State: In a parliamentary system, the head of state is a ceremonial figurehead with limited power, while
the head of government holds the political power.
 The head of government, usually the prime minister, is distinct from the head of state, who may be a monarch or a ceremonial
president.
 The prime minister is typically the leader of the majority party or coalition in the parliament.
3. Collective Responsibility: The cabinet, led by the prime minister, is collectively responsible to the parliament and must maintain its
confidence to remain in power.
4. Majority Rule and Minority Rights: Decisions are made by majority vote, but the rights of the minority are protected through mechanisms
like debate and opposition.
5. Bicameral or Unicameral Legislature: Parliaments can be bicameral (two houses) or unicameral (one house), with the lower house usually
having more power in determining the government.
6. Party System: A structured party system is essential, allowing for representation of diverse ideologies and interests.
7. Flexible Leadership: The prime minister and cabinet can be replaced if they lose the confidence of the parliament, allowing for adaptability
and responsiveness to public opinion.

Importance of Parliamentary Democracy:

 Accountability: The government is directly accountable to the parliament, ensuring that it acts in the public interest and can be
removed if it fails to do so.
 Representation: Elected representatives voice the concerns and interests of their constituents, ensuring that diverse viewpoints
are considered in decision-making.
 Efficiency: Parliamentary systems can enact legislation more efficiently, as the executive and legislative branches are
interconnected.
 Stability: By allowing for the replacement of the government without a complete electoral process, parliamentary systems can
provide political stability.
 Training Ground for Leaders: Parliamentary systems serve as a platform for future leaders to demonstrate their abilities and
gain experience in governance.

Peculiar Features of Parliamentary Democracy:

1. Vote of No Confidence: The government must retain the confidence of the majority in the parliament, which can lead to a vote of no
confidence and a change in leadership. Hence, providing a mechanism for accountability and allowing for the replacement of unpopular
leaders.
2. Ceremonial Head of State: In many parliamentary democracies, the head of state has a ceremonial role, with real political power residing
in the parliament and the prime minister.
3. Debate and Deliberation: Parliamentary systems emphasize debate and deliberation, allowing for thorough examination of policies and
legislation.
4. Bicameral Legislature: Many parliamentary democracies have a bicameral legislature, with an upper and lower house, which allows for
more comprehensive debate and scrutiny of legislation.
5. Dual Executive: The separation between the head of state and head of government allows for a dual executive structure, balancing
ceremonial duties with political leadership.
6. Collective Responsibility: The cabinet is collectively responsible to the parliament, meaning that all ministers are accountable for
government decisions and policies. If the government loses a vote of confidence, the entire cabinet must resign.
7. Majority Rule with Minority Rights: While the majority party or coalition forms the government, minority parties have a significant role
as the opposition, providing checks and balances and ensuring that diverse voices are heard.

Advantages of Parliamentary Democracy:

1. Accountability and Responsiveness: The executive is directly accountable to the parliament, which represents the electorate. This ensures
that the government remains responsive to public needs and can be swiftly replaced if it loses the confidence of the legislat ure.
2. Efficiency in Governance: The fusion of the executive and legislative branches allows for more efficient law-making and policy
implementation. The government often has the majority support in the parliament, facilitating the passage of legislation.
3. Continuity and Stability: The head of state, often separate from the head of government, remains in place even when governments change,
ensuring continuity. This is particularly beneficial during transitions between governments.
4. Prevention of Authoritarianism: The presence of an official opposition and the requirement for the government to maintain parliamentary
confidence help prevent the concentration of power and authoritarian rule.
5. Diverse Representation: Parliamentary systems often provide better representation for diverse groups, as they allow for coalition
governments and a multi-party system, ensuring that various interests and viewpoints are considered in governance.

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Role of the Opposition in a Parliamentary Democracy

1. Accountability and Oversight: The opposition scrutinizes the actions and policies of the government, holding it accountable for its
decisions. This involves questioning government officials, debating policies, and ensuring that government actions align with the public
interest.
2. Legislative Function: The opposition participates in the legislative process by debating bills, proposing amendments, and providing
alternative policies. This ensures that legislation is thoroughly examined and reflects diverse viewpoints.
3. Representation of Diverse Interests: The opposition represents various segments of society, including minority groups and dissenting
voices, ensuring that a wide range of perspectives is considered in governance.
4. Policy Alternatives: By proposing alternative policies and solutions, the opposition provides voters with choices and encourages a healthy
democratic process. This competition of ideas can lead to more innovative and effective governance.
5. Public Awareness and Engagement: The opposition plays a key role in raising public awareness about government actions and policies.
Through media engagement, public meetings, and campaigns, they inform and engage citizens, fostering a more informed electora te.
6. Checks and Balances: The opposition acts as a check on the government's power, preventing the abuse of authority and ensuring that
democratic principles are upheld. This is particularly important in preventing authoritarian tendencies.
7. Preparation for Governance: Serving in opposition allows political parties to develop their policies and leadership, preparing them for
potential future governance. This ensures continuity and stability in the political system.
8. Promoting Transparency: By demanding transparency and access to information, the opposition helps ensure that government operations
are open to public scrutiny, reducing the likelihood of corruption and misuse of power.

Peculiar Features of Opposition in Parliamentary Democracy:

1. Shadow Cabinet: In some parliamentary systems, the opposition forms a "shadow cabinet," where members are assigned to scrutinize
specific government departments and propose alternative policies.
2. Leader of the Opposition: The leader of the opposition is a formal position, often recognized in the constitution or parliamentary rules,
with specific responsibilities and privileges.
3. Question Time: Parliamentary systems often have designated times for questioning the government, allowing the opposition to directly
challenge ministers and hold them accountable.
4. Committees and Inquiries: The opposition often plays a significant role in parliamentary committees and inquiries, which investigate
government actions and policies in detail.

Historical Instances: Throughout history, there have been several instances where the opposition has significantly impacted the governing majority in
parliamentary democracies. The following are some notable examples:

1. United Kingdom: Labour Party's Influence (1970s): During the 1970s, the Labour Party, as the official opposition, played a crucial role
in scrutinizing the Conservative government's policies under Prime Minister Edward Heath. The opposition's strong stance on economic
issues, particularly in response to the economic downturn and industrial unrest, contributed to the government's eventual loss of confidence
and the Labour Party's return to power in 1974.
2. India: Janata Party's Role (1977): In India, the Janata Party, as the opposition, significantly impacted the Congress government's stability
during the Emergency period (1975-1977). The opposition's unified stance against the suspension of democratic rights and civil liberties
led to widespread public dissent. This opposition movement played a critical role in the Congress Party's defeat in the 1977 general elections,
marking the first time a non-Congress government came to power in India.
3. Canada: Progressive Conservative Party (1980s): In the early 1980s, the Progressive Conservative Party in Canada, as the official
opposition, effectively challenged the Liberal government's economic policies. Their focus on fiscal responsibility and econo mic reform
resonated with the public, leading to a shift in voter sentiment and the eventual election of the Progressive Conservative government under
Brian Mulroney in 1984.
4. Australia: Australian Labor Party (1975): In Australia, the opposition led by the Australian Labor Party (ALP) played a significant role
in the political crisis of 1975, known as the "Dismissal." The opposition's refusal to pass the government's budget in the Senate led to a
constitutional crisis, resulting in the Governor-General dismissing the Prime Minister, Gough Whitlam, and appointing the opposition
leader, Malcolm Fraser, as caretaker Prime Minister.
5. Germany: Social Democratic Party (1969): In Germany, the Social Democratic Party (SPD), as the opposition, influenced the governing
coalition's policies during the 1960s. Their focus on social reform and improved relations with Eastern Europe gained public support,
leading to the SPD forming a coalition government with the Free Democratic Party (FDP) in 1969, with Willy Brandt as Chancell or.

Impact of Opposition on Stability:

 Policy Influence: A strong opposition can influence government policy by highlighting issues and proposing alternatives that resonate with
the public, leading to policy adjustments by the governing majority.
 Government Accountability: The opposition's role in scrutinizing government actions ensures transparency and accountability, which can
lead to changes in leadership or policy if the government fails to maintain public confidence.
 Electoral Outcomes: Effective opposition can shift public opinion, leading to electoral victories and changes in government, as seen in the
examples above.
 Legislative Gridlock: In some cases, a strong opposition can lead to legislative gridlock, where the government struggles to pass legislation,
impacting governance and stability.

***

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L10 : Theme 10 : Bodies

(You are requested to please watch the lecture to understand pedagogy behind
placing different bodies under different themes)

Layout

Syllabus :

Appointment to various Constitutional posts, powers, functions and

responsibilities of various Constitutional Bodies.

Statutory, regulatory and various quasi-judicial bodies.

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PYQs

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CAG

Introduction :

Context

1. August 2024 : CAG Report claims Indian Railways incurred losses of INR
2604 crore due to multi faceted mismanagement such as GST shortfalls, loan
issues, and unfair contract awarding.
2. July 2024 : International Centre for Audit of Local Governance inaugurated at
Rajkot to provide expertise in local self government audits
3. Only 18 Union Audit reports by CAG during calendar year 2023

Quote : Dr. Ambedkar called CAG the friend, philosopher and guide of the Indian
parliament

Purpose

1. The Comptroller and Auditor General is essential in overseeing government

finances and ensuring public accountability.
2. Post-independence, public expenditure has increased hundred fold, with no
clear accountability structure in place. New regulatory bodies have been
created, and a good number of government transactions have been
computerised. These developments pose new challenges for public audits,
which require the CAG to reinvent itself. This entails more professionalism in
its working, wider power delegation, and fundamental reforms in its structural
organisation.

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Historical Context

1. Office of auditor general was created in the year 1857.

2. An Audit board consisting of the auditor general and chief of the military
finance department was set up in 1860. The Board was abolished in 1865 to
centralise administration in comptroller general
3. In 1882, comptroller general redesignated as comptroller and auditor general
and assigned the supervision of accounting system and an appropriation audit
4. The institution of CAGI took its present shape after the Government of India
Act 1919 in which the Auditor general was made an independent authority
and given statutory recognition
5. The importance of the office was raised further after the GoI Act, 1935 in
which his authority and position was increased to the status of a judge of the
federal court
6. After independence the office was given a constitutional status and was made
an independent authority independent from all the branches of the
government.

Primary Provisions

Constitutional Provisions

Provision Remarks

Art 148 ● Appointed by Pres,

● Removed in the same manner as SC Judge
● Salary and allowances cannot be at a disadvantage and
charged to CFI
● Bar on post retirement govt posts

Art 149 Duties & Powers, Parliament can make law - Duties, Powers, and
Conditions of Service Act, 1971

Art 150 President on advice of the CAG can prescribe the formats of
keeping accounts of the Union & States

Art 151 President & Governor SHALL have audit reports by CAG laid
before Parliament and State Legislature respectively

Art 279 Certifying net proceeds

III Schedule Oath

VI Schedule Audits of District and Regional Council Accounts which Governor

may place before such councils.

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Statutory Provisions :

1. Comptroller and Auditor-General's (Duties, Powers and Conditions of Service)

Act, 1971
2. CAG's DPC Act 1971 has been amended four times i.e. 1976, 1984, 1987 and
1994.
3. Allows for creation of rules and regulations.

CAG’s Strengths:

1. CAG has a constitutional status. His high status has been sustained by long
traditions of public audit.
a. CAG has been ensured autonomy in public audit by the Constitution.
2. The scope of external audits conducted by the CAG is wide. He has the
power to determine its nature and extent.
3. CAG has vast authority to inspect accounts offices and has access to records
and relevant information.
4. CAG has the authority to determine as to what should be included in the audit
report.
5. CAG has developed well-documented audit manuals, standards and
guidelines which are followed by the auditors.
6. CAG assists the Public Accounts Committee (PAC) of the Parliament/State
Legislature in examining and scrutinising the audit reports and in preparing
the report which is submitted by the PAC to the Parliament/State Legislature.
He acts as a friend, philosopher and guide to the PAC.

CAG’s Functions and Types of Audits:

The Constitution primarily entrusts the CAG with two major functions :

● Compilation and keeping of accounts in selected states.

● Audit of public entities of Union and State Governments.

Types of Audits

1. Appropriation Audit: This is the most traditional form of audit In this

approach he ensures that the money spent by the government has been
spent in accordance with the appropriation bill passed by the legislature.
2. Regularity Audit : This is another conventional type of audit of the govt. In
this he ensures that all the statutory and administrative rules have been
followed in spending the money.

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3. Propriety Audit : This is the most important of all the types in this, he
ensures that the money has been spent by the persons who has been
authorised to spend it and that he has shown full wisdom, faithfulness and
economy in spending the [Link] is primarily done to protect the public
interest in the spending of public money
4. Efficiency Audit : In this type he tries to search for wasteful, extravagant or
fraudulent wastage of funds.

Important Judgements

Judgement Year Forum Outcome

Arvind Gupta v. UoI 2013 SC Upheld constitutionality of performance audits

Raghunath Kelkar v. UoI 2009 Bom HC Court can’t get into the nature, time, and
scope of CAG Audits

National Dairy 1998 Del HC CAG DPC Act, 1971 is a Special Act and not
Development Board v. a general Act. It can audit a statutory
CAG of India corporation also even if statutory corporation’s
law does not provide for CAG Audit

Arun Kr. Agarwal v. UoI 2012 SC Since CAG is a constitutional functionary, its
report can be the basis of initiating legal
action; however, the inputs of the Parliament
and concerned Ministry must also be
examined if they point out some errors in the
CAG Reports.
CAG reports are always subject to
Parliamentary scrutiny and it is up to the
Parliament to decide what to do post
examining the report.

Shri. S Subramaniam 2013 SC CAG can ONLY audit after expenditure has
Balaji v. Government of been incurred NOT before.
Tamil Nadu

Analysis : The courts have generally approached challenges to CAG’s powers

liberally and found the CAG to be an important constitutional functionary to
determine accountability of public finances.

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Notable scams unearthed by CAG :

2G Spectrum Scam: This scam began in the year 2008 when spectrum and
licences for second generation (2G) mobile phone services were irrationally issued
to nine telecom companies. The main accused in the scam was the former Telecom
Minister, A. Raja. The CAGI estimated that the shortfall between the amount of
money collected and the amount which was mandated by the law to be collected
was Rupees 1,76,645 crore.

Antrix Devas Deal Scam: This scam came into light in the year 2011. The
Department of Space (DoS) of Government of India (GOI) violated the rules and
policies for approving the agreement between Antrix Corporation Limited (a GOI
owned company under the administrative control of DoS) and Devas Multimedia
Private Limited. The agreement between the two companies was signed in the year
2005. Under the agreement Antrix Corporation Limited was to provide 70 MHz of
the scarce S-Band wavelength to Devas Multimedia Private Limited for its digital
multimedia services. The audit report estimated losses to the tune of Rupees
200,000 crore. The name of former Chairperson of Indian Space Research
Organisation (ISRO) G. Madhvan Nair appeared in the case. The agreement was
later on cancelled by the GOI.

Coal Block Allocation Scam: This scam came into light in the year 2012. The
Central Government allocated coal blocks in different parts of the country
unreasonably to companies during the period 2004-2009 resulting in the loss of
Rupees 1.86 lakh crore. The name of the then Prime Minister, Dr. Manmohan Singh
who was heading the Ministry of Coal at the time of scam, appeared in the case.

Critical Analysis :

1. Lack of Transparency in Appointment and Service Conditions

● Problem: The process of appointing the CAG is opaque, with appointments

often being made from the Indian Administrative Service (IAS) without a
transparent selection process.
● Example: Questions raised on the post retirement appointment of Mr. Vinod
Rai, former CAG as Chairman of Banking Boards Bereau.

2. Conflict of Interest

● Problem: Appointing individuals with previous government roles as CAG can

lead to conflicts of interest, compromising the independence and objectivity of
the audit process.

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● Example: Shashi Kant Sharma's previous involvement in defense deals as

Secretary of Defence before becoming CAG raised concerns about his
impartiality(EPW CAG ).

3. Inadequate Professional Competence & Demoralisation of the IAAS

● Problem: Many recent CAG appointees lack the necessary professional

knowledge and expertise in auditing and financial management, impacting the
effectiveness of the office. Most CAGs who are appointed are IAS Officers.
This leads to lack of specialisation for the Supreme Audit Institution as well as
lack of loss of morale for the parent IAAS Cadre as they don’t get an
opportunity to serve at the top position
● Example: Out of the total 14 CAGs appointed till date, only the first 3 came
from the IAAS. From the remaining 11, 10 were ex IAS Officers.

4. Overdependence on Deputies

● Problem: The CAG is responsible for signing off on a vast number of reports,
which is impractical for one individual to manage effectively, leading to
overdependence on deputies.
● Example: Every year, the CAG presents about 20–25 reports for the central
government and 75–80 reports for the state governments (three for every
state). Each report is 200–250 pages long; all together, the CAG presents
25,000–30,000 pages of audit reports to Parliament and state legislatures.
The CAG is expected to go through all this material personally, as he must
sign every report presented to Parliament and state legislature.

5. Lack of Legal Power for State Audits

● Problem: State-level auditors, such as Accountant Generals, lack sufficient

legal authority and protection, leading to challenges in effectively auditing
state finances.
● Example: The lack of legal status for state Accountant Generals often leaves
them vulnerable to pressure from state governments and hinders their ability
to perform their duties effectively.

6. Need for Modernization and Professionalization

● Problem: The audit process is outdated, with a focus on petty objections

rather than significant issues, and there is a need for modernization and
professionalization of the audit approach.

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● Example: The audit department continues to operate in a colonial style, with

junior staff conducting field audits and missing the broader picture. The need
for modern techniques and professional expertise is emphasized.

7. Inadequate Legal Authority

● Challenge: The CAG lacks sufficient legal powers to enforce compliance with
its audit findings. There is no mechanism for the CAG to recover public funds
lost due to malfeasance or to take punitive action against those responsible.
● Impact: This limitation reduces the effectiveness of the CAG's audits, as
government departments may ignore audit recommendations without fear of
legal consequences.

8. Political Pressure and Lack of Independence

● Challenge: The CAG often faces political pressure, especially when audit
findings are unfavorable to the government in power. The lack of a
transparent and independent appointment process further exacerbates this
issue.
● Impact: Political pressure can compromise the independence of the CAG,
leading to biased reporting and reduced public trust in the institution's
findings.

9. Centralising Structure

● Historical Context: The original draft of the Indian Constitution included a

provision for an Auditor-in-Chief for each state. However, this was later
amended, and the responsibility for state audits was placed under the CAG.
● Impact: This historical decision has led to the current centralized audit
structure, which does not fully align with the federal nature of India's
governance. The centralized control over state audits by the CAG has limited
the effectiveness of financial oversight at the state level.

International Best Practices

1. United Kingdom (UK)

● Model: The CAG is appointed after a formal procedure involving Parliament.

● Appointment Process: The Prime Minister makes the appointment in
agreement with the Chairperson of the Public Accounts Committee (PAC).
The appointment requires an address in the House of Commons.
● Unique Feature: The CAG is considered a member of the House of
Commons, giving the role higher visibility and accountability to Parliament.

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2. Australia

● Model: The Auditor General is appointed following consultation with a

parliamentary committee.
● Appointment Process: The Governor General appoints the Auditor General
based on the recommendation of the Joint Committee of Public Accounts and
Audit, ensuring legislative input.
● Unique Feature: Parliamentary approval is a precondition for the
appointment, ensuring independence from the executive.

3. Canada

● Model: The Auditor General is appointed with input from multiple political
parties.
● Appointment Process: The Governor appoints the Auditor General after
consulting with and obtaining approval from leaders of all recognized parties
in both the Senate and House of Commons.
● Unique Feature: This model ensures broad political consensus and
minimizes executive influence on the appointment.

4. New Zealand

● Model: The Public Audit Act regulates the appointment.

● Appointment Process: The Governor General appoints the Auditor General
based on recommendations from the United States House of
Representatives.
● Unique Feature: The procedure reflects the high degree of legislative
involvement in the appointment process, ensuring transparency and
parliamentary oversight.

5. United States

● Model: The Comptroller General is appointed through a rigorous procedure

involving both the President and Congress.
● Appointment Process: The President nominates a Comptroller General
based on the recommendations of a commission consisting of the Speaker of
the House, Senate leadership, and others. The Senate must confirm the
appointment.
● Unique Feature: The involvement of a bipartisan commission and Senate
confirmation ensures significant checks on executive power.

6. Germany

● Model: The Federal Court of Audit (Bundesrechnungshof) operates through a

senate-like structure.

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● Appointment Process: The President and Vice President of the Federal

Court of Audit are appointed by the Federal President after approval from both
houses of Parliament.
● Unique Feature: The Federal Court operates as a multi-member body, with a
large senate that includes directors of audit and managers who participate in
decision-making.

7. France

● Model: The Cour des Comptes (Court of Audit) operates as a judicial body.
● Appointment Process: The Cour des Comptes functions through a collegiate
body where the draft reports are reviewed by a full bench presided over by the
first president.
● Unique Feature: The Cour can act as a court of law and has jurisdiction to
order the recovery of funds illegally spent by public officials.

8. Japan

● Model: The Board of Audit consists of a three-member commission.

● Appointment Process: The Cabinet appoints the commissioners, and the
National Diet (Parliament) must approve the appointments.
● Unique Feature: The Board's collegiate decision-making approach ensures
checks and balances within the audit process.

9. South Korea

● Model: The Board of Audit and Inspection operates through a commission.

● Appointment Process: The Chairperson of the Board is appointed by the
President, but the appointment requires the consent of the National Assembly.
● Unique Feature: A multi-member audit commission ensures shared
responsibility and oversight.

10. South Africa

● Model: A parliamentary committee plays a key role in the appointment.

● Appointment Process: A parliamentary committee recommends names, and
the National Assembly and the President approve the final appointment.
● Unique Feature: The process ensures significant parliamentary involvement,
providing greater independence from executive influence.

Common Features Across International Models:

1. Parliamentary Involvement: In most countries, the Parliament or a

parliamentary committee is involved in the appointment process, ensuring that
the head of the SAI is not solely chosen by the executive.

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2. Collegiate Bodies: Some countries (e.g., France, Germany, Japan) have

multi-member audit boards or courts to ensure collective decision-making and
reduce the burden on a single individual.
3. Independence from the Executive: Many systems ensure that the
appointment of the CAG or equivalent is independent of executive influence,
preserving the integrity of the audit function.
4. Legal and Judicial Authority: In countries like France, the audit institution
has judicial powers to hold public officials accountable for financial
misconduct.

Solutions

1. Transparent and Objective Appointment Process

● Recommendation: Establish a transparent and objective process for

appointing the CAG. This should involve a selection committee that includes
the Prime Minister, the Speaker of the Lok Sabha, the Leader of the
Opposition, the Finance Minister, and the Chairperson of the Public Accounts
Committee (PAC).
● Rationale: To ensure that the CAG is selected based on merit and
professional competence rather than political considerations, reducing the risk
of conflicts of interest.

2. Multi-Member Audit Commission

● Recommendation: Convert the CAG into a multi-member audit commission

or audit board, with members responsible for specific areas such as civil
departments, defense services, revenue, and commercial enterprises.
● Rationale: This would allow for a more specialized and focused approach to
auditing and reduce the burden on a single individual. It would also promote
collegiate decision-making, enhancing the objectivity and credibility of audit
reports.

3. Strengthening State-Level Audits

● Recommendation: Provide state-level Accountant Generals (AGs) with

greater legal status and autonomy, allowing them to function more effectively.
Consider raising their status to be equivalent to at least a state Chief
Information Commissioner or a High Court Judge.
● Rationale: This would improve the effectiveness of audits at the state level
and ensure that state finances are adequately scrutinized.

4. Grant Adjudicatory Powers to CAG

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● Recommendation: Equip the CAG and senior audit officers with adjudicatory
powers, allowing them to recover losses or take action in cases of financial
irregularities or malfeasance by public officials.
● Rationale: This would empower the CAG to enforce accountability more
effectively and recover public money lost due to unauthorized or fraudulent
activities.

5. Penalties for Non-Compliance

● Recommendation: Introduce penalties for government departments that

delay or refuse to provide access to records during audits. Implement a
system similar to the Central Information Commission (CIC) under the RTI
Act.
● Rationale: Ensuring timely access to records is crucial for the effectiveness of
audits. Penalties would discourage obstruction and improve compliance.

6. Modernization and Professionalization

● Recommendation: Modernize the CAG's audit processes by adopting

modern auditing techniques, statistical sampling methods, and focusing audits
on critical issues rather than routine transactions. Recruit specialists in fields
like information technology, engineering, economics, and finance.
● Rationale: A more professional and technically skilled audit body would be
better equipped to handle complex and modern financial systems, increasing
the relevance and impact of audit findings.

7. Autonomy for State Accountant Generals

● Recommendation: Provide greater autonomy to State Accountant Generals

by allowing them to finalize state audit reports and present them directly to the
state legislature, within the broad policy framework set by the CAG.
● Rationale: This would lead to more timely and effective audits at the state
level, enhancing the overall accountability of state governments.

8. Legislative and Constitutional Amendments

● Recommendation: Consider necessary legislative and constitutional

amendments to implement the above reforms, including the creation of a
multi-member audit commission and granting adjudicatory powers to the
CAG.
● Rationale: Structural and legal changes are needed to adapt the CAG to the
demands of modern governance and ensure that it remains a robust
institution for public accountability.

9. Increased Parliamentary Oversight

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● Recommendation: Strengthen the role of Parliament and the PAC in

overseeing the work of the CAG, including in the appointment process and in
reviewing audit reports.
● Rationale: Increased oversight by Parliament would ensure that the CAG
remains independent and accountable to the democratic process.

Finance Commission of India

What is the Finance Commission?

● The Finance Commission is a constitutional body responsible for

recommending the distribution of tax revenues collected by the Central
government among the Centre and the various States in the country.
● While the Centre is not legally required to implement the Commission's
recommendations, the Commission is typically reconstituted every five years
and usually takes a couple of years to finalize its recommendations to the
Centre.

How does the Commission decide?

● The Finance Commission determines the proportion of the Centre’s net tax
revenue that should be allocated to the States overall (vertical devolution) and
how this share is distributed among the various States (horizontal devolution).
● Horizontal devolution is usually based on a formula devised by the
Commission that considers factors like a State’s population, fertility rate,
income level, and geography. Vertical devolution, however, does not follow an
objective formula.
● Recent Finance Commissions, including the 13th, 14th, and 15th, have
recommended increasing the vertical devolution of tax revenues to States,
suggesting shares of 32%, 42%, and 41% of the divisible pool, respectively.
Additionally, the Centre may provide States with additional grants for specific
jointly-funded schemes.

Why is there friction between the Centre and States?

● Tensions between the Centre and States over tax revenue sharing have
persisted for some time. The Centre collects major taxes like income tax,
corporate tax, and goods and services tax (GST), while States mainly depend
on taxes from goods such as liquor and fuels, which are outside the GST
framework.
● Despite being responsible for delivering essential services like education,
healthcare, and policing, States argue that the Centre has limited their ability
to collect taxes and does not provide sufficient funds to match their
responsibilities.

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What are the disagreements?

● Disagreements often arise between the States and Centre regarding the
percentage of total tax revenue that should be allocated to the States and the
actual disbursement of these funds. States contend that they should receive
more funds than recommended by the Finance Commission due to their
greater responsibilities. They also point out that the Centre often does not
even transfer the full amount recommended by the Finance Commission,
which they believe is already insufficient. For instance, analysts note that
under the current Fifteenth Finance Commission, the Centre has devolved an
average of only 38% of funds from the divisible pool to the States, compared
to the Commission’s recommendation of 41%.
● Moreover, States express concerns about what portion of the Centre’s overall
tax revenues should be included in the divisible pool, from which States
receive funding. It is estimated that cesses and surcharges, which are not part
of the divisible pool and hence not shared with the States, can constitute up to
28% of the Centre’s total tax revenue in some years, leading to significant
revenue loss for States. This means that the increased devolution of funds
from the divisible pool, as recommended by successive Finance
Commissions, may be counterbalanced by the rising collection of cesses and
surcharges. In fact, if these cesses and surcharges were included, the States'
share of the Centre’s overall tax revenues might drop to as low as 32% under
the 15th Finance Commission.
● More developed States, such as Karnataka and Tamil Nadu, have also
expressed dissatisfaction, arguing that they receive less in return from the
Centre than what they contribute in taxes. For example, Tamil Nadu reportedly
received only 29 paise for every rupee it contributed to the Centre’s
exchequer, whereas Bihar receives more than ₹7 for every rupee it
contributes. This has led to the argument that more developed States with
better governance are being penalized to support States with poorer
governance. Additionally, some critics believe that the Finance Commission,
whose members are appointed by the Centre, may not be entirely
independent and could be subject to political influence.

XV FC : The Fifteenth Finance Commission (the 15th FC) was constituted on in

2017 for making recommendations for a five-year period of 2020-21 to 2024-25. In
2019, the ToR of the 15th FC was amended requiring the Commission to submit two
reports, namely a first report for financial year 2020-21 and a final report for an
extended period of 2021-22 to 2025-26. As a result, the 15th FC made its
recommendations for a six-year period from 2020-21 to 2025-26.

Key Recommendations:

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1. Tax Devolution:
○ The Fifteenth Finance Commission recommended the allocation of the
union government’s sharable taxes based on specific criteria, resulting
in a higher share for the Hindi-belt states and a lower share for
southern and northeastern states.
2. Population Criteria:
○ The commission changed the population criteria from the 1971 Census
to the 2011 Census, which placed states that had successfully
controlled their population growth at a disadvantage.
3. GST Structure:
○ It recommended simplifying the GST structure by merging the 12% and
18% tax slabs and adopting a three-rate structure to reduce
classification disputes and enhance revenue.
4. Healthcare Funding:
○ The commission recommended increasing healthcare expenditure to
2.5% of GDP by 2025, urging states to allocate more towards primary
health expenditure.
5. Local Bodies Grant:
○ It proposed a grant of ₹4.36 lakh crore for local bodies during 2021–26,
with a significant portion earmarked for healthcare at the primary level.
6. Defense and Internal Security Fund:
○ The creation of a non-lapsable modernization fund for defense and
internal security was proposed to address capital shortfalls in these
sectors.
7. Fiscal Management:
○ Recommendations included reducing borrowing limits for states and
the union, restructuring the Fiscal Regulation and Budget Management
(FRBM) Acts, and introducing a credit rating system for states.
8. Independent Fiscal Council:
○ The commission suggested setting up an independent fiscal council
with access to government records to improve transparency and fiscal
discipline.

Key Arguments:

1. Equity in Distribution:
○ The commission faced criticism for favoring Hindi-belt states in tax
devolution at the expense of southern and northeastern states, which
have better-managed populations and economies.
2. Impact of Population Criteria:
○ The shift to the 2011 Census was argued to be unfair to states that had
effectively controlled their population growth, raising concerns about
the equity and fairness of the allocation.
3. Challenges in GST Implementation:

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○ The commission highlighted the complexities and inefficiencies in the

current GST structure, emphasizing the need for simplification to
ensure revenue neutrality and ease of compliance.
4. Healthcare Allocation Insufficient:
○ Despite recommendations for increased healthcare spending, the
commission’s allocation was criticized as insufficient to meet the
ambitious target of 2.5% of GDP by 2025.
5. Local Governance:
○ The file emphasized the need for capacity-building in local
governments, particularly in rural healthcare, where infrastructure and
human resources are severely lacking.
6. Defense Funding Challenges:
○ The proposed modernization fund for defense and internal security was
seen as a necessary step, but concerns were raised about the
feasibility of funding it through disinvestment and land monetization.

Proposed Solutions:

1. Simplification of GST:
○ The commission proposed merging tax slabs and creating a more
straightforward GST structure to reduce disputes and increase
efficiency.
2. Enhancing Healthcare Expenditure:
○ Recommendations included increasing health expenditure as a
percentage of state budgets and providing more flexibility to states in
implementing health schemes.
3. Modernization Fund for Defense:
○ The creation of a non-lapsable modernization fund was proposed as a
solution to the funding gaps in defense and internal security, though the
practical implementation remains uncertain.
4. Fiscal Discipline Mechanisms:
○ The commission suggested introducing credit ratings for states to
encourage fiscal discipline and better financial management, though
this is likely to face resistance from states.
5. Improvement in Public Financial Management:
○ The recommendation for an independent fiscal council aimed to
improve transparency and fiscal management, despite anticipated
resistance from political leadership.

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Challenges and Opportunities before the XVI FC

The Sixteenth Finance Commission has been constituted in pursuance of the

provisions of the Constitution of India by the President with Dr. Arvind Panagariya as
Chairman.

The Commission is required to make recommendations covering a period of five

years commencing on 01st April 2026 as to the following matters:
i. The distribution between the Union and the States of the net proceeds of taxes
which are to be, or may be, divided between them under Chapter I, Part XII of the
Constitution and the allocation between the States of the respective shares of such
proceeds;

ii. The principles which should govern the grants-in-aid of the revenues of the States
out of the Consolidated Fund of India and the sums to be paid to the States by way
of grantsin-aid of their revenues under article 275 of the Constitution for the
purposes other than those specified in the provisos to clause (1) of that article; and

iii. The measures needed to augment the Consolidated Fund of a State to

supplement the resources of the Panchayats and Municipalities in the State on the
basis of the recommendations made by the Finance Commission of the State.

The Commission is also mandated to review the present arrangements on financing

Disaster Management initiatives, with reference to the funds constituted under the
Disaster Management Act, 2005 (53 of 2005)

Challenges:

1. Erosion of Divisible Pool:

○ The increasing share of surcharges and cesses, which now constitute
around 19% of the gross tax revenue (GTR) of the union, has
significantly reduced the divisible pool of taxes shared with the states.
i. The share of surcharges and cesses, which are not part of the
divisible pool, has risen significantly, now constituting around
19% of the gross tax revenue (GTR) of the union government.
This trend has reduced the net proceeds available for
distribution to states, creating a challenge for equitable fiscal
transfers.
2. Horizontal Equity:
○ The challenge of maintaining horizontal equity among states with vastly
different levels of income and fiscal capacity remains significant.
Ensuring that all states can provide basic services at comparable costs
to their citizens is a key issue.

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i. the coefficient of variation in per capita incomes has been

consistently rising, indicating that income disparities are
widening. This makes it challenging to ensure that citizens in
poorer states receive comparable levels of basic services as
those in richer states.
3. Declining Share for Certain States:
○ There has been a continuous decline in the share of certain states,
particularly southern states, in the distribution of union taxes. This
decline has raised concerns about equitable distribution.
i. Southern states like Kerala, Karnataka, and Tamil Nadu have
seen a continuous decline in their share of union taxes over
successive finance commissions. This decline is a significant
challenge, as it may lead to fiscal stress and affect the delivery
of public services in these states.
4. Widening Disparities:
○ The disparities in per capita gross state domestic product (GSDP)
among states have been widening, making it more challenging to
achieve balanced regional development.
i. Disparities in per capita gross state domestic product (GSDP)
have been widening over time. For instance, the standard
deviation of per capita incomes has increased from ₹4,361.75
during the 11th Finance Commission to ₹86,872.6 during the
15th Finance Commission, indicating growing income inequality
among states.
5. Complexity in Tax Distribution Formula:
○ The formula used for tax distribution has become increasingly complex,
with different weightages assigned to factors such as population,
income distance, and fiscal capacity. This complexity makes it difficult
to achieve a balance between equity and efficiency.
i. Complexity of the tax distribution formula used by previous
finance commissions, with various factors like income distance,
population, area, and fiscal capacity being given different
weightages. This complexity can lead to dissatisfaction among
states, particularly those that see a decline in their share of tax
revenues.

Opportunities:

1. Revision of Vertical Devolution:

○ The commission should consider an upward revision of the states'
share in the net proceeds of union taxes as and when there is an
increase in surcharges and cesses by the union government.
2. Horizontal Equity Stabilization Fund:

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○ The creation of a horizontal equity stabilization fund is recommended to

compensate states that experience a significant decline in their share
of union taxes compared to previous finance commission awards.
i. States like Odisha and Assam, which have seen their shares
decline, could benefit from such a fund to avoid fiscal and
liquidity stress.
3. Publication of Net Proceeds Data:
○ The union government should publish data on the net proceeds of
taxes (GTR minus surcharges, cesses, and cost of collection) to
ensure transparency in the distribution of tax revenue.
4. State-wise Fiscal Analysis:
○ An expert study group should analyze the fiscal needs of each state,
and the findings should be factored into the formula for inter se
distribution of taxes.

Comparison of XV and XVI FCI

Key Areas of Comparison

1. Context and Timing:

○ 15th Finance Commission:
■ The 15th FC operated in the backdrop of the implementation of
the Goods and Services Tax (GST) and the economic
challenges posed by the COVID-19 pandemic. Its
recommendations covered the period from 2021 to 2026.
○ 16th Finance Commission:
■ The 16th FC is expected to deal with the ongoing post-pandemic
recovery and the evolving fiscal dynamics between the union
and states. It will need to address the challenges that have
intensified since the 15th FC, including the shrinking divisible
pool of taxes due to rising surcharges and cesses.
2. Revenue Sharing and Vertical Devolution:
○ 15th Finance Commission:
■ Recommended that 41% of the net proceeds of union taxes be
devolved to states, which was effectively the same as the 42%
recommended by the 14th FC, with adjustments made due to
Jammu and Kashmir's change in status to a union territory.
○ 16th Finance Commission:
■ Likely to face greater pressure to reconsider the vertical
devolution formula, especially with states demanding a higher
share (some suggesting up to 50% of net proceeds) due to the
erosion of the divisible pool caused by increasing surcharges
and cesses.
3. Horizontal Distribution and Equity:

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○ 15th Finance Commission:

■ Focused on ensuring equity by using criteria such as income
distance, population, and area for horizontal distribution.
However, it faced criticism, particularly from southern states, for
reducing their share relative to their population.
○ 16th Finance Commission:
■ Expected to explore new mechanisms like a Horizontal Equity
Stabilization Fund to address disparities in tax shares among
states. This fund would help states that see significant
reductions in their share compared to previous commissions,
thereby addressing concerns over declining shares for certain
regions.
4. Population Criteria:
○ 15th Finance Commission:
■ Used the 2011 Census for population-based criteria, which was
controversial as it disadvantaged states that had successfully
controlled their population growth.
○ 16th Finance Commission:
■ May revisit the use of population data and possibly adjust the
weightages to balance concerns over population control with the
need for equitable distribution.
5. Challenges Identified:
○ 15th Finance Commission:
■ Dealt with the dual challenges of GST implementation and the
fiscal pressures of the COVID-19 pandemic. It had to navigate
the complexities of central and state financial relations during a
time of economic crisis.
○ 16th Finance Commission:
■ Faces ongoing challenges related to the shrinking divisible pool
due to surcharges and cesses, widening regional disparities,
and the need to support post-pandemic economic recovery
while maintaining fiscal discipline.
6. Health and Social Sector Spending:
○ 15th Finance Commission:
■ Recommended increasing health expenditure to 2.5% of GDP
by 2025 and stressed the importance of improving primary
healthcare. It also allocated specific grants for health sector
improvements.
○ 16th Finance Commission:
■ Will likely continue to emphasize social sector spending,
particularly health, but will need to account for the long-term
impacts of the pandemic and ensure that states have the fiscal
capacity to meet these goals.
7. Transparency and Accountability:

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○ 15th Finance Commission:

■ Recommended the creation of an independent fiscal council to
enhance transparency and accountability in public finances,
though this recommendation was not implemented.
○ 16th Finance Commission:
■ Expected to reiterate the need for greater transparency, possibly
advocating for the publication of detailed data on net proceeds
and suggesting mechanisms to ensure states' fiscal stability in
the face of changing central revenue policies.

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Theme 11 : L11 : Civil Services

PYQs

1. Civil Service under the East India Company:

○ The earliest organised civil service in British India was the 'Covenanted
Civil Service,' comprising men who conducted the trade of the East
India Company. The civil servants were distinct from naval and military
officers and were primarily involved in commercial activities.
2. Charter Act of 1853:
○ This act introduced the principle of open competition for recruitment
into the civil services, replacing the system of nomination. This marked
the beginning of a more structured and merit-based approach to civil
service recruitment.
3. Macaulay Committee Report (1854):
○ The Macaulay Committee laid down age limits and recommended that
candidates for the civil service should be selected through competitive
examinations. It emphasised a broad, liberal education as a
prerequisite for civil service candidates.
4. Aitchison Commission (1886):
○ The Aitchison Commission recommended the abolition of the statutory
civil service and proposed a three-fold classification of civil services
into Imperial, Provisional, and Subordinate Civil Services. This

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reorganisation aimed to create a more streamlined and efficient

administrative structure.
5. Government of India Act, 1919:
○ The Act introduced a classification of services into All India, Provincial,
and Subordinate Services. It also provided safeguards for members of
the All India Services regarding dismissal, salaries, pensions, and other
rights.
6. Lee Commission (1923):
○ The Royal Commission on Superior Civil Services, also known as the
Lee Commission, recommended the Indianization of civil services. It
suggested that 40% of the superior posts should be filled by direct
recruitment of Indians, another 40% by Europeans, and 20% by
promotion from provincial services.
7. Government of India Act, 1935:
○ This Act introduced provincial autonomy and ensured that the rights
and privileges of civil servants were protected. It also provided for the
establishment of a Federal Public Service Commission and Provincial
Public Service Commissions to maintain the integrity and efficiency of
civil services
8. Post-Independence Developments:
○ After independence, the Indian government retained elements of the
British civil service structure, including an open entry system,
permanency of tenure, and a hierarchical organisation. The
Constitution of India gave a constitutional base to the All India
Services, recognizing their importance in maintaining national unity and
ensuring efficient administration

These developments highlight the evolution of the civil services in India

from a commercial enterprise's administrative body to a crucial pillar of
governance in an independent nation.

Role of Bureaucracy

Bureaucracy plays a crucial role in the functioning of modern states,

particularly in the implementation of government policies and the
administration of public affairs. The document outlines the following key roles
of bureaucracy:

1. Implementation of Policies

● Bureaucracy is instrumental in converting government policies into actionable

programs and projects. It is responsible for the detailed execution of these
policies, ensuring that they are carried out effectively across various levels of
administration. This involves not only the management of resources but also
the coordination of efforts across different departments and agencies.

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○ The Swachh Bharat Mission, launched in 2014, aimed at making India

open defecation-free and improving sanitation across the country.
Bureaucrats at various levels played a key role in implementing this
policy by coordinating with local governments, managing funds, and
ensuring community participation. The result was the construction of
over 110 million toilets across rural India by 2019.

2. Advisory Role

● Bureaucrats serve as key advisors to political leaders. Their expertise,

experience, and detailed knowledge of the administrative processes allow
them to provide informed advice on the formulation and modification of
policies. This advisory role is critical in helping political leaders make
decisions that are feasible and grounded in practical realities.
○ The NITI Aayog, which replaced the Planning Commission, is an
example of an advisory body where senior bureaucrats play a crucial
role in formulating economic strategies and policies for India. The
Aayog advises the Prime Minister and the central government on a
range of issues, from sustainable development goals to sector-specific
reforms like the Atal Innovation Mission.

3. Continuity and Stability

● In democratic systems, political leaders may change with elections, but

bureaucracy provides continuity and stability in governance. Bureaucrats, as
permanent employees, ensure that there is an uninterrupted implementation
of policies and administration regardless of changes in the political leadership.
This continuity is essential for maintaining the consistency and reliability of
public services.
○ The Election Commission of India, which includes top-level
bureaucrats, ensures the smooth conduct of elections across the
country, maintaining the democratic process even during political
transitions. The bureaucracy ensures continuity in the administration of
free and fair elections, exemplified by the successful management of
the 2019 General Elections, where over 900 million people were
eligible to vote.

4. Regulation and Control

● Bureaucracy plays a regulatory role by ensuring that laws and regulations are
adhered to by both the public and private sectors. It supervises the
enforcement of laws, monitors compliance, and takes corrective actions when
necessary. This role is vital in maintaining the rule of law and ensuring that
government policies are implemented fairly and consistently.

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○ The RBI, managed by senior bureaucrats and technocrats, plays a

crucial regulatory role in controlling inflation, managing currency, and
supervising the banking sector. For example, during the 2016
demonetization drive, the RBI's role was critical in managing the
liquidity and ensuring the stability of the financial system.

5. Administrative Decision-Making

● Bureaucrats are involved in day-to-day decision-making within the

administrative framework. They make decisions related to the implementation
of policies, allocation of resources, and management of government
programs. Their decisions often have a direct impact on the effectiveness of
government operations and the delivery of public services.
○ During the COVID-19 pandemic, the Indian bureaucracy, particularly
health officials and district administrators, made critical decisions
regarding the allocation and distribution of vaccines. Bureaucrats
ensured the smooth execution of the world's largest vaccination drive,
administering over 2 billion doses by 2022

6. Crisis Management

● Bureaucracy plays a crucial role during crises, such as natural disasters,

economic downturns, or public health emergencies. Bureaucrats are often the
first responders in such situations, coordinating relief efforts, managing
resources, and ensuring that the government’s response is efficient and
effective. Their ability to manage crises is a testament to the importance of a
well-organised and responsive bureaucratic system.
○ The Odisha government’s response to Cyclone Fani in 2019 is an
excellent example of effective crisis management by the bureaucracy.
Over 1.2 million people were evacuated in a record 24 hours before the
cyclone made landfall. The state’s disaster management authority,
largely run by bureaucrats, was instrumental in minimising casualties
and coordinating relief operations.

7. Promoting Development

● In developing countries, bureaucracy is often seen as a key instrument of

development. Bureaucrats are responsible for implementing development
programs aimed at improving infrastructure, education, healthcare, and other
critical areas. Their role in promoting and sustaining development is essential
for the overall progress of the nation.
○ The PMGSY, launched in 2000, aimed at providing all-weather road
connectivity to unconnected villages. Bureaucrats at various levels
ensured the implementation of this development project, leading to the

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construction of over 600,000 kilometres of roads, significantly

enhancing rural connectivity and economic growth.

8. Maintaining Social Order

● Bureaucracy helps maintain social order by implementing government policies

aimed at social welfare and justice. This includes the administration of public
safety, law enforcement, and the provision of social services. By ensuring that
these services are delivered effectively, bureaucracy contributes to social
stability and the well-being of citizens.
○ The Mid-Day Meal Scheme, managed by the Ministry of Education with
the involvement of state-level bureaucrats, aims to improve nutritional
levels among school children while ensuring higher enrollment and
attendance. Bureaucrats ensure the scheme's effective
implementation, which benefits over 100 million children annually.

9. Neutrality and Impartiality

One of the core principles of bureaucracy is its neutrality and impartiality.

Bureaucrats are expected to implement policies and administer public services
without bias or favouritism, regardless of their personal beliefs or the political
environment. This ensures that all citizens receive equal treatment under the law and
that government actions are based on merit rather than political considerations.

10. Innovation and Adaptation

● In modern governance, bureaucracy is increasingly expected to be innovative

and adaptable. Bureaucrats must be able to respond to new challenges, such
as technological advancements or changing public expectations, by
developing new approaches to governance. This requires a bureaucracy that
is not only efficient but also capable of learning and evolving.
○ The Aadhaar project, led by the UIDAI and managed by bureaucrats, is
a prime example of innovation in governance. Aadhaar, the world’s
largest biometric ID system, has revolutionised service delivery in India
by linking subsidies, benefits, and services directly to citizens, reducing
leakages and corruption.

Conclusion

The role of bureaucracy is multifaceted and central to the functioning of any

government. It ensures the implementation of policies, provides stability and
continuity in governance, manages crises, and promotes development. Despite
criticisms, the bureaucracy remains an indispensable institution, essential for the
smooth and effective operation of the state. The challenges it faces, such as
maintaining neutrality and adapting to new demands, highlight the need for
continuous reform and improvement to better serve the public.

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Growing Importance of Bureaucracy in Recent Years:

In recent years, the role of bureaucracy in India has become increasingly crucial due
to several factors that reflect the evolving challenges and demands of governance.
Below are the key reasons for this growing importance, illustrated with real-life
examples:

1. Increasing Population

As India’s population continues to grow, the demands on government services have

expanded significantly. Bureaucracy plays a pivotal role in managing and distributing
resources efficiently.

Example: The Public Distribution System (PDS) has had to scale up to meet the
needs of over 800 million people. Bureaucrats ensure the smooth operation of this
vast network, distributing essential food grains to the nation’s poor. The National
Food Security Act (2013) further expanded the scope of PDS, reflecting the
increased responsibility of bureaucracy in managing such large-scale public
services.

2. Industrial Development

Rapid industrialization has increased the need for a robust bureaucratic framework
to regulate industries, enforce laws, and facilitate economic growth.

Example: The Make in India initiative, launched in 2014, aimed to transform India
into a global manufacturing hub. Bureaucrats have been instrumental in easing
regulations, simplifying approval processes for new industries, and attracting foreign
direct investment (FDI). Between 2014 and 2020, FDI inflows into India rose by 60%,
showcasing the vital role of bureaucracy in supporting industrial development.

3. Welfare State Responsibilities

The adoption of the welfare state model has increased the need for an efficient
bureaucracy to execute social welfare schemes and ensure they reach the intended
beneficiaries.

Example: The Pradhan Mantri Jan Dhan Yojana (PMJDY), launched in 2014, aimed
to bring financial inclusion to the unbanked population. Bureaucrats were key in
enrolling over 400 million beneficiaries, many of whom now receive direct benefit
transfers (DBT) into their accounts. This initiative highlights the indispensable role of
bureaucracy in implementing welfare policies at scale.

4. Complexities of Modern Governance

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As the functions of the state have become more complex, the role of bureaucracy
has expanded to manage a wide range of governance issues, from economic
reforms to digital governance.

Example: The implementation of the Goods and Services Tax (GST) in 2017 was a
landmark reform in India’s tax system. Bureaucrats played a crucial role in
coordinating with state governments, setting up the GST Network (GSTN), and
ensuring compliance across the country. The success of GST in simplifying the tax
system and increasing revenue collection underscores the importance of a capable
and efficient bureaucracy.

5. Rising Expectations of the People

As citizens become more aware of their rights and more demanding of government
services, the role of bureaucracy has grown to meet these expectations.

Example: The Right to Information (RTI) Act, 2005, empowered citizens to seek
information from the government, increasing transparency and accountability.
Bureaucrats are responsible for processing RTI requests and providing timely
information. Since the enactment of RTI, over 10 million requests have been filed,
reflecting the growing expectations of the people and the corresponding increase in
bureaucratic responsibility.

6. Globalisation and International Relations

In an increasingly globalised world, the role of bureaucracy has expanded to include

the management of international relations, trade agreements, and participation in
global forums.

Example: Indian bureaucrats have been instrumental in negotiating international

climate agreements, such as the Paris Agreement. The Ministry of Environment,
Forest, and Climate Change (MoEFCC) coordinates India’s climate policy, ensuring
compliance with global commitments while balancing national interests. India’s
leadership in the International Solar Alliance (ISA) is another example of the
expanded role of bureaucracy in global diplomacy.

7. Technological Advancements

The rapid advancement of technology has necessitated a bureaucracy that is

adaptable and capable of implementing digital governance initiatives.

Example: The Aadhaar project, led by the Unique Identification Authority of India
(UIDAI), provided unique identification numbers to over 1.3 billion Indians. This
massive digitization effort, managed by bureaucrats, has streamlined government
services, reduced fraud, and enabled direct benefit transfers (DBT). Aadhaar’s

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success highlights the growing importance of bureaucracy in leveraging technology

for effective governance.

8. Disaster Management and Crisis Response

The increasing frequency and intensity of natural disasters and public health
emergencies have underscored the critical role of bureaucracy in managing crises.

Example: During the COVID-19 pandemic, the Indian bureaucracy played a vital role
in managing the response, from enforcing lockdowns to coordinating the vaccination
drive. By August 2022, India had administered over 2 billion vaccine doses,
demonstrating the capability and importance of the bureaucratic machinery in
handling large-scale emergencies.

Conclusion

The growing importance of bureaucracy is evident across various domains of

governance, from managing the complexities of a modern welfare state to
responding to global challenges and emergencies. The examples provided
underscore how bureaucracy has adapted to meet the evolving needs of the nation,
ensuring stability, efficiency, and progress.

Civil Services Reform

Civil services reform is crucial for enhancing the effectiveness and efficiency of
government operations in India. Historically, the Indian Civil Services, rooted in
colonial administration, have played a vital role in maintaining governance continuity.
However, in the context of globalisation and technological advancements, these
services must evolve to meet new challenges and expectations.

Civil service reforms are aimed at reorienting the civil services into a dynamic,
efficient, and accountable mechanism for public service delivery. The goal is to
uphold the values of integrity, impartiality, and neutrality while improving service
delivery, policy formulation, and administration at all levels of government. Reforms
are needed to address the inefficiencies and outdated practices that have long
plagued the civil services.

Challenges in Civil Services

1. Lack of Professionalism and Capacity Building:

○ The current system lacks continuous professional development
opportunities, which are essential for civil servants to keep pace with

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evolving demands. This gap contributes to a lack of expertise and

innovation within the civil services.
2. Inefficient Incentive Systems:
○ The incentive structures often fail to recognize and reward outstanding
performance. Instead, the system tends to reward mediocrity and
sometimes even corruption, leading to a decline in motivation and
accountability among civil servants.
3. Outdated Rules and Procedures:
○ Many of the rules and procedures governing civil services are obsolete,
restricting the ability of civil servants to perform effectively. The rigid
adherence to outdated processes hampers innovation and
responsiveness in administration.
4. Inconsistencies in Promotion and Empanelment:
○ The promotion system is often criticized for being arbitrary, with
decisions influenced by political considerations rather than merit. This
inconsistency demotivates capable officers and leads to a lack of trust
in the system.
5. Lack of Transparency and Accountability:
○ There are insufficient mechanisms for ensuring transparency and
holding civil servants accountable. The absence of protection for
whistleblowers further exacerbates the problem, allowing corruption
and inefficiency to persist unchecked.
6. Arbitrary Transfers and Insecurity of Tenure:
○ Frequent and politically motivated transfers disrupt continuity in
administration and create insecurity among civil servants. This
instability impedes the institutionalisation of best practices and
long-term planning.
7. Political Interference:
○ Excessive political interference undermines the autonomy of civil
servants, leading to compromised decision-making and reduced
effectiveness in governance. This interference often forces civil
servants to prioritise political considerations over public service.
8. Erosion of Values and Ethics:
○ There has been a gradual decline in the ethical standards and values
within the civil services. The culture of patronage and favoritism has
weakened the commitment to public service and the rule of law.

Suggestions for Civil Services Reform

1. Strengthening Professionalism and Capacity Building:

○ Introduce continuous professional development programs that are
aligned with current global and technological trends. Encourage

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specialisation and domain-specific expertise to enhance the

effectiveness of service delivery.
2. Reforming the Incentive System:
○ Revise the incentive structures to reward merit and outstanding
performance. Implement performance-linked incentives and
disincentives to encourage accountability and deter corruption.
3. Updating Rules and Procedures:
○ Modernise the rules and procedures governing civil services to reflect
contemporary needs and challenges. Simplify processes to reduce
bureaucratic red tape and increase administrative efficiency.
4. Ensuring Merit-Based Promotions and Empanelment:
○ Establish clear, transparent, and merit-based criteria for promotions
and empanelment. Introduce mechanisms to prevent political
interference in these decisions, ensuring that capable and deserving
officers are recognized and promoted.
5. Enhancing Transparency and Accountability:
○ Strengthen mechanisms for transparency, such as the Right to
Information (RTI) Act, and enforce strict accountability measures.
Introduce protection for whistleblowers to encourage the reporting of
corruption and inefficiency.
6. Stabilising Tenure and Reducing Arbitrary Transfers:
○ Implement fixed tenures for civil servants to ensure stability and
continuity in administration. Establish a Civil Services Board to oversee
transfers and promotions, reducing the influence of political pressures.
7. Reducing Political Interference:
○ Clearly demarcate the roles of politicians and civil servants to minimize
political interference in administrative matters. Empower civil servants
to make decisions based on merit and public interest rather than
political expediency.
8. Reviving Values and Ethics:
○ Reinforce the core values of integrity, impartiality, and neutrality in the
civil services. Introduce ethics training and establish codes of conduct
to uphold high moral standards in public service.

Conclusion

Civil services reform is essential for creating a more dynamic, efficient, and
accountable administration that can effectively meet the demands of modern
governance. Addressing the challenges of professionalism, transparency,
accountability, and political interference is crucial for enhancing the capacity of civil
servants to deliver high-quality public services. By implementing these reforms, the

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civil services can better contribute to India's socio-economic development and the
overall well-being of its citizens.

Source/Committee/Commission Year Key Recommendations

Secretariat Reorganisation 1947 Reorganisation of Government of

Committee (Chair: Sir India; restructuring of central
Girijashankar Vajpayee) secretariat; creation of an organisation
and methods machinery.

Gopalaswami Ayyangar 1949 Restructuring central secretariat;

Committee recommended abolition of the
separate grade of Additional
Secretary; suggested grouping of
departments dealing with economic
and social services.

A.D. Gorwala Report on Public 1951 Emphasised recruitment and training;

Administration suggested an induction training
program; recommended establishment
of an Organization and Methods (O &
M) machinery and Whitley Councils.

Paul Appleby Reports 1953, Advocated for O & M machinery and

1956 establishment of an Institute of Public
Administration; emphasised need for
efficient administrative machinery.

First Administrative Reforms 1966- Suggested specialisation, unified

Commission (ARC) 1970 grading structure, national policy on
civil service training, and
establishment of Central Training
Division; recommended creation of
Department of Personnel,
performance appraisal reforms, and
accountability mechanisms like Lok
Pal and Lok Ayukta.

D.S. Kothari Committee on 1976 Recommended two-stage examination

Recruitment Policy and for civil services (preliminary and main
Selection Methods exams); proposed changes in civil
service training.

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Fifth Central Pay Commission 1994- Suggested optimization of government

1997 staff size, downsizing for efficiency,
and advocated for the use of ICT for
governance reforms.

Surinder Nath Committee Report 2003 Suggested domain-based assignment

on Performance Appraisal for civil servants, computerized
monitoring of performance appraisals,
and focus on promoting officers based
on demonstrated competence.

Hota Committee on Civil Service 2004

Reforms

Second Administrative Reforms 2005- Emphasised legislative support for

Commission (ARC) 2009 civil service reforms, new public
service law, redefining
government-civil servant relationships,
and reforms in recruitment and
accountability mechanisms.

Generalists vs. Specialists: Understanding the Debate

The debate between generalists and specialists has long been a contentious issue in
public administration. The generalist character of the Indian civil services, a legacy of
British administration, has often led to tensions with specialists who possess
technical expertise.

Generalists

● Definition: Generalists are civil servants recruited based on liberal education,

with no specific technical or professional qualifications. They are appointed to
supervisory and administrative positions and play a crucial role in policy
formulation, coordination, and implementation.
● Role: Generalists are valued for their ability to take a broad, holistic view of
governance issues. They are often at the forefront of decision-making
processes and work closely with political executives. Their broad-based
knowledge and managerial skills enable them to coordinate across various
departments and reconcile conflicting viewpoints.

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● Criticism: Critics argue that generalists may lack the technical expertise
required for certain specialised areas, which could limit their effectiveness in
modern, complex governance.

Specialists

● Definition: Specialists are professionals with technical qualifications in

specific fields, such as engineering, medicine, or economics. They are
recruited to positions that require a high degree of specialised knowledge and
are often involved in the execution of policies within their areas of expertise.
● Role: Specialists contribute their deep technical knowledge to tackle complex
problems in governance, particularly in areas like healthcare, infrastructure,
and scientific research. Their expertise is crucial in ensuring that policies are
not only well-designed but also feasible and technically sound.
● Criticism: Generalists often view specialists as having a narrow focus, which
may limit their ability to take a broader view of issues and contribute to
policy-making at higher levels.

Towards Harmonious Collaboration

Given the complementary roles of generalists and specialists, there is a growing

recognition of the need for harmonious collaboration between the two. The modern
administrator requires both generalist and specialist qualifications to navigate the
complexities of governance.

Recommendations for Collaboration:

1. Integrated Hierarchy: Moving towards an integrated hierarchy, where both

generalists and specialists share responsibilities in policy formulation and
implementation, can help bridge the gap between the two groups.
2. Career Development: Both generalists and specialists should have access to
career development opportunities that allow them to acquire the skills
necessary for higher administrative positions.
3. Equal Status and Opportunities: Specialists should be given opportunities
to occupy top policy-making positions, ensuring that their expertise is utilised
effectively in governance.
4. Training Programs: Innovative training programs should be implemented to
enhance the functional specialisation of generalists and the administrative
skills of specialists.

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The role of bureaucracy is more critical than ever in ensuring effective governance.
The debate between generalists and specialists should not be viewed as a zero-sum
game; rather, the two groups must work together to fulfil the goals of development
and good governance. By fostering a collaborative environment and integrating the
strengths of both generalists and specialists, the bureaucracy can better serve the
nation and address the complex challenges of the modern world.

Mission Karmayogi

Mission Karmayogi, launched by the Government of India in 2020, is a

transformative initiative aimed at enhancing the capacity and effectiveness of the
Indian civil services. It seeks to modernise the approach and competencies of civil
servants to better meet the changing needs of governance in a rapidly evolving
socio-economic environment. Here are the key features of Mission Karmayogi:

1. Shift from Rules-Based to Roles-Based HR Management: The mission

emphasises assigning jobs to civil servants based on their specific
competencies rather than just following traditional rules-based assignments.
This ensures that the right person is placed in the right role.
2. On-Site Learning Complementing Off-Site Learning: Civil servants are
provided with hands-on training opportunities on-site, which complement
off-site learning experiences. This practical approach aims to better equip
them for real-world challenges.
3. Ecosystem of Shared Training Infrastructure: The initiative creates an
ecosystem where civil servants have access to shared learning materials,
institutions, and personnel, promoting a culture of continuous learning.
4. Framework of Roles, Activities, and Competencies (FRACs): This
approach calibrates the competencies required for various government
positions, ensuring that learning content is tailored to the specific needs of
each role.
5. Focus on Behavioral, Functional, and Domain Competencies: Mission
Karmayogi aims to build and strengthen the competencies of civil servants in
these three critical areas, fostering a more holistic development.
6. Co-Creation of the Common Ecosystem: Central ministries, departments,
and organisations collaborate to create a shared learning ecosystem. Each
employee has an annual subscription to this ecosystem, ensuring continuous
professional development.
7. Partnership with Learning Content Creators: The mission encourages
partnerships with public training institutions, universities, startups, and
individual experts to create a diverse and dynamic learning environment.
8. iGOT Karmayogi Data Analytics: Data analytics is employed to identify
areas for reform in administration and policy implementation. This helps in
mapping competencies to various positions based on real-time feedback.

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9. Holistic Reform of Capacity Building: Mission Karmayogi is a

comprehensive reform that addresses capacity building at individual,
institutional, and process levels, aiming for efficient public service delivery and
better governance.

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Theme 12 : L12 : Development Policy

Syllabus : Government Policies and Interventions for Development in various

sectors and Issues arising out of their Design and Implementation.

PYQs

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Milestones of India’s Story :

The First Decade (1947-1957)

1. Controller of Capital Issues, 1947: Introduced just before independence, this

act established government control over the issuance of capital, reflecting the
socialist orientation of the new Indian state.
2. Minimum Wages Act, 1948: This act ensured a minimum standard of living for
workers and was one of the first steps toward labour welfare in independent
India.
3. Factories Act, 1948: A comprehensive law enacted to regulate the working
conditions in factories, it marked a significant move towards labour rights.
4. Development Finance Institutions, 1948: The establishment of the Industrial
Finance Corporation of India (IFCI) marked the beginning of institutional
finance in post-independence India.
5. Banking Regulation Act, 1949: This act empowered the Reserve Bank of India
(RBI) to regulate banks, laying the groundwork for India's banking sector.
6. Planning Commission, 1950: Created to drive India's economic planning, the
Planning Commission was central to the implementation of the Five-Year
Plans.
7. Finance Commissions, 1951: These commissions were established to
recommend the distribution of financial resources between the central and
state governments.
8. Industries (Development and Regulation) Act, 1951: Marked the beginning of
the Licence Raj, giving the government control over industrial development.
9. Indian Standards Institution (Certification Marks) Act, 1952: Established the
Indian Standards Institution (ISI) to certify the quality of goods, which became
a crucial tool for consumer protection.

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10. Nationalisation of Air India, 1953: This marked the beginning of state control
over key sectors, leading to the nationalisation of airlines.
11. State Bank of India Act, 1955: Created the State Bank of India (SBI), which
played a significant role in expanding banking services across India.
12. Oil and Natural Gas Corporation, 1955: Established to explore and produce
hydrocarbons, laying the foundation for India's energy sector.
13. Essential Commodities Act, 1955: Empowered the government to regulate the
production, supply, and distribution of essential commodities, ensuring their
availability at fair prices.
14. Industrial Policy Resolution, 1956: A significant policy document that
reinforced the socialist pattern of development, emphasising state control over
industries.
15. Nationalisation of Life Insurance, 1956: The creation of the Life Insurance
Corporation of India (LIC) marked the state's monopoly in the life insurance
sector.

The Second Decade (1957-1967)

16. Institutes of Technology Act, 1961: Established the Indian Institutes of

Technology (IITs) as institutions of national importance, laying the groundwork
for India's technological education.
17. Food Corporation of India, 1965: Created to ensure food security, the FCI
played a critical role in the public distribution system and in maintaining buffer
stocks.
18. Agricultural Prices Commission, 1965: Set up to recommend Minimum
Support Prices (MSP) for agricultural produce, aimed at protecting farmers'
incomes.
19. Special Economic Zones, 1965: The establishment of the Kandla Free Trade
Zone marked the beginning of efforts to promote exports through specialised
zones.

The Third Decade (1967-1977)

20. Public Provident Fund, 1968: Introduced as a savings scheme for the general
public, it became a popular tool for long-term savings with guaranteed returns.
21. Nationalisation of Banks, 1969: The government took control of 14 major
banks, a move aimed at ensuring that banking services reached all sectors of
society.
22. Monopolies and Restrictive Trade Practices (MRTP) Act, 1969: Enacted to
prevent the concentration of economic power and monopolistic practices, this
act was a cornerstone of India's economic regulation.
23. Nationalisation of Coal Mines, 1971: The government took control of coal
mining, a vital industry for India’s industrialization.

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24. 93.5 Percent Marginal Rate of Taxation, 1971: Introduced during this period,
this high marginal tax rate was a reflection of the state's socialist economic
policies.
25. Nationalisation of General Insurance, 1972: Consolidated the general
insurance industry under government control, creating a state monopoly.
26. Foreign Exchange Regulation Act, 1973: This act imposed strict controls on
foreign exchange, reflecting the inward-looking economic policies of the time.
27. Sick Textile Undertakings (Nationalisation) Act, 1974: Allowed the government
to take over sick textile companies, aiming to protect jobs and stabilise the
industry.
28. Bonded Labour System (Abolition) Act, 1976: Abolished the practice of
bonded labor, a significant step towards eradicating exploitative labour
practices.
29. Urban Land Ceiling and Regulation Act, 1976: Enacted to prevent the
concentration of urban land in the hands of a few, it aimed to curb speculative
landholding.
30. Standards of Weights and Measures Act, 1976: Standardised weights and
measures across the country, crucial for ensuring fair trade practices.

The Fourth Decade (1977-1987)

31. Abolishment of the Right to Property, 1978: This constitutional amendment

downgraded the right to property from a fundamental right to a constitutional
right, aligning with the socialist agenda.
32. Nationalisation, then Privatisation, of Maruti Udyog, 1980: The nationalisation
and subsequent partial privatisation of Maruti Udyog reflected the changing
approach to state control in industry.
33. Sick Industrial Companies Act, 1985: Introduced to address industrial
sickness, it provided a legal framework for the revival of sick companies.
34. Consumer Protection Act, 1986: A landmark law that established consumer
rights and provided a mechanism for addressing consumer grievances.

The Fifth Decade (1987-1997)

35. Prevention of Corruption Act, 1988: Strengthened the legal framework to

combat corruption in public offices, a major issue in India's governance.
36. National Highways Authority of India Act, 1988: Paved the way for the
development and management of India's national highways, which are crucial
for economic growth.
37. Statement on Industrial Policy, 1991: Marked the beginning of economic
liberalisation, with a shift from state control to market-driven policies.
38. Foreign Investment Promotion Board, 1991: Established to facilitate and
promote foreign investment in India, a key element of the liberalisation
process.

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39. Disinvestment, 1991: The government initiated the disinvestment of public

sector enterprises, marking a shift towards privatization.
40. Securities and Exchange Board of India, 1992: Created to regulate the
securities market, ensuring transparency and protecting investor interests.
41. Debt Recovery Tribunals, 1993: Established to expedite the recovery of bad
debts by banks and financial institutions, crucial for maintaining financial
stability.
42. National Stock Exchange, 1994: Introduced as a modern, electronic stock
exchange, it played a pivotal role in transforming India’s capital markets.
43. National Telecom Policy, 1994: Liberalised the telecom sector, paving the way
for private participation and rapid growth in telecommunications.

The Sixth Decade (1997-2007)

44. Tarapore Committees on Full Convertibility, 1997: Recommended steps

towards making the Indian rupee fully convertible on the capital account,
reflecting the ongoing liberalisation.
45. Telecom Regulatory Authority of India, 1997: Established to regulate the
rapidly growing telecom sector, ensuring fair competition and consumer
protection.
46. New Normal in Income Tax Rates, 1997: Simplified and reduced income tax
rates, part of broader tax reforms aimed at increasing compliance and
boosting revenues.
47. New Exploration Licensing Policy, 1997: Opened up the oil and gas sector to
private and foreign participation, crucial for enhancing energy security.
48. Electricity Regulatory Commissions Act, 1998: Established independent
regulators for the power sector, aimed at improving efficiency and attracting
investment.
49. Insurance Regulatory Development Authority of India, 1999: Set up to
regulate and promote the insurance industry, introducing competition and
increasing penetration.
50. Foreign Exchange Management Act, 1999: Replaced the restrictive FERA,
liberalising foreign exchange regulations in line with India's economic reforms.
51. Information Technology Act, 2000: Provided a legal framework for
e-commerce and cyber activities, crucial for the growth of the IT sector.
52. Prevention of Money-Laundering Act, 2002: Introduced to combat money
laundering, it strengthened the financial system's integrity.
53. Competition Commission of India, 2002: Replaced the MRTP Act, focusing on
promoting competition and preventing monopolies.
54. Pension Fund Regulatory and Development Authority, 2003: Established to
regulate pension funds, encouraging long-term savings and retirement
planning.

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55. Fiscal Responsibility and Budget Management Act, 2003: Aimed at ensuring
fiscal discipline and reducing fiscal deficits, crucial for macroeconomic
stability.
56. National Policy on Airports, 2003: Outlined the framework for airport
development, including private sector participation, to modernise
infrastructure.
57. Mahatma Gandhi National Rural Employment Guarantee Act, 2005: Provided
a legal guarantee for employment in rural areas, marking a significant step
towards poverty alleviation.

The Seventh Decade (2007-2017)

58. Foreign Contribution (Regulation) Act, 2010: Regulated foreign contributions

to ensure they did not adversely affect internal security.
59. FDI in Retail, 2012: Allowed foreign direct investment in multi-brand retail, a
significant move towards liberalising the retail sector.
60. Companies Act, 2013: Overhauled the corporate regulatory framework,
enhancing transparency, accountability, and governance in companies.
61. Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013: Replaced the colonial-era land
acquisition law, aiming to ensure fair compensation and minimise
displacement.
62. Pradhan Mantri Jan Dhan Yojana, 2014: Aimed at financial inclusion, it
brought millions of unbanked individuals into the formal banking system.
63. Benami Transactions (Prohibition) Amendment Act, 2015: Strengthened the
legal framework to combat black money and benami transactions.
64. Arbitration and Conciliation (Amendment) Act, 2015: Improved the arbitration
process to make it more efficient and attractive for investors.
65. Hydrocarbon Exploration and Licensing Policy, 2016: Introduced a transparent
and investor-friendly regime for oil and gas exploration.
66. Aadhaar, 2016: Formalised the Aadhaar system, which became the world’s
largest biometric identification system, used for various social and financial
services.
67. Insolvency and Bankruptcy Code, 2016: Created a comprehensive framework
for resolving insolvency, crucial for improving the ease of doing business.
68. Demonetisation, 2016: Aimed at curbing black money, counterfeit currency,
and corruption, it had a significant impact on the economy.
69. Real Estate (Regulation and Development) Act, 2016: Introduced to regulate
the real estate sector, ensuring transparency and protecting consumers.
70. Goods and Services Tax, 2017: Replaced multiple indirect taxes with a single
tax, creating a unified national market and simplifying the tax structure.

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The Eighth Decade (2017……….)

71. National Health Protection Scheme (Ayushman Bharat), 2018: Launched

as one of the world’s largest health insurance schemes, Ayushman Bharat
aimed to provide health coverage to over 500 million Indians. It includes the
establishment of Health and Wellness Centers (HWCs) and the Pradhan
Mantri Jan Arogya Yojana (PM-JAY), offering insurance coverage up to ₹5
lakh per family per year for secondary and tertiary care hospitalisation.
72. National Education Policy, 2020: Marking a significant shift in India’s
education system, the NEP 2020 overhauled the existing structure. It
introduced multiple entry and exit options in degree courses, increased focus
on vocational training, and proposed a single higher education regulator. The
policy emphasises critical thinking, creativity, and holistic education from
pre-primary to higher education.
73. Jal Jeevan Mission, 2019: Launched with the goal of providing piped
drinking water to every rural household in India by 2024, focusing on safe and
adequate drinking water supply through individual household tap connections.
74. National Infrastructure Pipeline (NIP), 2019: A vision to develop world-class
infrastructure, aiming to invest ₹102 lakh crore in projects over five years
(2020-2025) across sectors like energy, roads, urban development, railways,
and irrigation.
75. Labor Codes, 2020: The consolidation of 29 labour laws into four broad
labour codes:
● The Code on Wages
● The Industrial Relations Code
● The Occupational Safety, Health and Working Conditions Code
● The Social Security Code

These reforms aimed to simplify and modernise India’s labour laws, ensuring
flexibility while protecting workers' rights and social security.

76. Atmanirbhar Bharat Abhiyan, 2020: Aimed at making India self-reliant, this
initiative was launched in response to the COVID-19 pandemic, focusing on
economic revival through five pillars: economy, infrastructure, system, vibrant
demography, and demand.
77. Production Linked Incentive (PLI) Scheme, 2020: Introduced to boost
manufacturing and exports in key sectors such as electronics,
pharmaceuticals, and textiles, offering incentives to companies for enhancing
production capacities.
78. National Digital Health Mission, 2020: Aimed at creating a digital health
ecosystem in India, providing a unique health ID for every citizen, digital
health records, and a registry of doctors and health facilities across the
country.

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79. New Income Tax Regime, 2020: Offered as an alternative to the existing tax
system, this regime provides lower tax rates but eliminates most deductions
and exemptions, aiming to simplify the tax system and increase compliance.
80. Mission Karmayogi, 2020: A national program for civil services capacity
building, focusing on continuous learning and development to create a
citizen-centric and future-ready civil service.
81. Vehicle Scrappage Policy, 2021: Launched to promote the phasing out of
old and unfit vehicles, reducing pollution and encouraging the use of modern,
fuel-efficient vehicles.
82. Privatisation and Asset Monetization, 2021: The government’s strategy to
privatise key public sector enterprises and monetize assets like roads,
railways, and power transmission lines, aiming to raise funds for public
welfare and reduce the fiscal deficit.
83. Gati Shakti National Master Plan, 2021: Launched to integrate infrastructure
planning across multiple sectors, using geospatial technology and data
analytics to coordinate between various ministries and stakeholders.
84. Amendments to the Insolvency and Bankruptcy Code, 2021: Introduced to
streamline the resolution process for distressed companies, including a
pre-packaged insolvency resolution process for MSMEs.
85. National Green Hydrogen Mission, 2022: Launched to make India a global
hub for green hydrogen production, focusing on reducing carbon emissions
and promoting the use of renewable energy sources.
86. Climate Action Plan, 2022: Reflecting India’s commitment to the Paris
Agreement, this updated plan includes ambitious targets for renewable
energy, carbon sequestration, and emission reductions.
87. Unified Logistics Interface Platform (ULIP), 2022: Part of the Gati Shakti
initiative, ULIP aims to create a single digital interface for all logistics services
in India, improving efficiency and reducing costs.

Aadhaar : The key to transformative governance

Aadhaar is the world’s largest biometric identification system and represents a

cornerstone of India’s digital identity framework. Launched by the Unique
Identification Authority of India (UIDAI) in 2009, Aadhaar aimed to provide each
resident with a 12-digit unique identity number (UID), which would serve as a
universal proof of identity and address the inefficiencies in welfare delivery. As of
December 2019, over 1.25 billion people, or nearly 99% of India's adult population,
had been enrolled in the Aadhaar system, showcasing its unprecedented scale and
reach.

Objectives of Aadhaar

The Aadhaar program was designed with three overarching objectives:

1. Create a Unique Identity:

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○ Identification Accuracy: Aadhaar was designed to create a foolproof

method of identification using biometric data, including fingerprints, iris
scans, and facial photographs, to ensure that each individual could be
uniquely identified.
○ Prevent Duplication: The deduplication process, involving biometric
checks against the entire database, ensures that no individual is
enrolled more than once. By 2017, the UIDAI had detected and
resolved over 40,000 instances of duplicate enrollments, ensuring the
integrity of the database.
2. Strengthen Inclusion:
○ Targeted Delivery: Aadhaar has been crucial in identifying
beneficiaries for various welfare programs. For example, the Public
Distribution System (PDS) now uses Aadhaar for authentication, which
has significantly reduced fraud and duplication of ration cards, saving
an estimated ₹14,000 crore (approx. USD 2 billion) annually.
○ Access to Financial Services: The linkage of Aadhaar with Jan Dhan
accounts and mobile phones under the JAM Trinity has facilitated the
opening of over 400 million bank accounts for the unbanked, many of
whom are in rural areas.
3. Promote Equity:
○ Social and Economic Inclusion: Aadhaar has facilitated the inclusion
of marginalised communities in the formal economy. By enabling
access to banking, mobile services, and government benefits, Aadhaar
has brought millions into the socio-economic mainstream.

Early Challenges in Implementation

The Aadhaar program faced several significant challenges in its early stages:

● Data Collection and Privacy Concerns:

○ Minimal Data Collection: Initially, the UIDAI had to decide on the type
and extent of data to be collected. It was decided that only four
demographic fields—name, date of birth, gender, and communication
address—would be mandatory. This minimalist approach aimed to
balance the need for effective identification with privacy concerns.
○ Biometric Challenges: Enrolling over a billion people, especially in
rural and remote areas, required overcoming significant logistical
hurdles. Biometric capture was particularly challenging among manual
labourers, whose fingerprints were often worn out. Despite these
challenges, the UIDAI managed to build a robust biometric database,
enrolling over 1.25 billion people by 2019.
● Technological and Operational Hurdles:
○ Massive Scale: The UIDAI developed the Central Identities Data
Repository (CIDR) to store and manage the vast amounts of data

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collected. This system had to be scalable and secure, handling millions

of authentication requests per day. By 2017, the Aadhaar system was
processing over 40 million authentication requests daily
○ Outsourcing Enrollments: To manage the scale, UIDAI outsourced
enrollment to various registrars and certified agencies, which
sometimes led to inconsistencies in data collection practices. However,
strict oversight and continuous improvement in processes helped
mitigate these issues.

Integration with Government Programs

Aadhaar has been pivotal in transforming the delivery of government services

through various integrations:

● JAM Trinity (Jan Dhan, Aadhaar, Mobile):

○ Financial Inclusion: The integration of Aadhaar with Jan Dhan bank
accounts and mobile phones has been transformative. For instance,
the Pradhan Mantri Jan Dhan Yojana (PMJDY) aimed to provide
universal access to banking facilities. By linking Aadhaar with bank
accounts, over 400 million accounts were opened, and more than ₹1.5
trillion (approx. USD 20 billion) in subsidies were directly transferred
into these accounts by 2020, significantly reducing leakage and
corruption.
● Direct Benefit Transfer (DBT):
○ Efficiency Gains: The Aadhaar-enabled DBT system has ensured that
subsidies for LPG, scholarships, pensions, and other benefits are
transferred directly to beneficiaries’ bank accounts. The LPG subsidy
transfer alone saved the government ₹56,000 crore (approx. USD 7.7
billion) by eliminating fake and duplicate connections.
○ Welfare Schemes: The Mahatma Gandhi National Rural Employment
Guarantee Act (MGNREGA) payments have also been streamlined
using Aadhaar. This has reduced delays in payments and ensured that
the wages reach the rightful beneficiaries without middlemen.
● India Stack:
○ Digital Infrastructure: Aadhaar is the foundation of India Stack, a
suite of open APIs that allows governments, businesses, and
developers to leverage digital identity, payments, and data sharing
capabilities. This includes the Unified Payments Interface (UPI), which
has revolutionised digital payments in India. UPI transactions crossed
the ₹2 trillion (approx. USD 27 billion) mark in a single month by 2021,
illustrating the impact of Aadhaar on the financial ecosystem.

Challenges and Criticisms

Despite its successes, Aadhaar has been subject to significant scrutiny and criticism:

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● Privacy and Security Concerns:

○ Data Breaches: There have been multiple reports of data breaches
involving Aadhaar. For example, in 2018, the Tribune reported a breach
where access to the Aadhaar database was allegedly sold for ₹500
(approx. USD 7). These incidents raised serious concerns about the
security of biometric and demographic data.
○ Supreme Court Rulings: In response to privacy concerns, the
Supreme Court of India ruled in 2018 that Aadhaar could not be made
mandatory for services such as bank accounts and mobile connections
but upheld its use for welfare schemes, taxation, and other government
services.
● Exclusion Issues:
○ Authentication Failures: There have been reports of beneficiaries
being denied services due to Aadhaar authentication failures. For
example, in Jharkhand, several cases were reported where individuals
were denied food rations due to biometric mismatches or connectivity
issues, leading to tragic outcomes in some instances.
○ Marginalised Communities: Vulnerable populations, such as the
elderly, manual labourers, and those in remote areas, have faced
difficulties in enrolling and authenticating due to poor biometric quality
or lack of awareness. This has led to instances where benefits have
been denied, exacerbating their socio-economic vulnerabilities.

Moving Forward: Aadhaar 2.0

The next phase of Aadhaar, often referred to as Aadhaar 2.0, aims to address
existing challenges and expand its utility:

● Enhanced Security Measures:

○ Virtual ID and Limited KYC: To mitigate privacy concerns, UIDAI
introduced a Virtual ID (VID) system, which allows users to generate a
temporary 16-digit VID to avoid sharing their actual Aadhaar number.
Additionally, the concept of limited KYC has been introduced to reduce
the risk of data misuse.
● Expanding Use Cases:
○ Financial Services: Aadhaar is expected to play a significant role in
the expansion of digital financial services, especially in rural areas. The
integration of Aadhaar with the digital lending platforms could
revolutionise access to credit for small businesses and farmers.
○ Social Programs: The government plans to further integrate Aadhaar
with various social programs to improve efficiency and reduce
corruption. This includes its use in healthcare, where Aadhaar can help
in creating a centralised health records system.

Conclusion

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Aadhaar has fundamentally transformed governance in India, enabling efficient

delivery of services, reducing corruption, and promoting social and economic
inclusion. However, as it moves into its next phase, addressing privacy concerns,
ensuring security, and preventing exclusion will be critical to maintaining its credibility
and realising its full potential. Aadhaar 2.0 promises to build on these successes,
driving India further into the digital age while addressing the challenges that have
emerged historically.

New Approaches to Welfare in India (Economic Survey 2024)

Introduction India's welfare paradigm has undergone significant transformation in

recent years, reflecting a shift from short-term relief measures to long-term,
empowering approaches that aim to build sustainable social infrastructure. This new
approach to welfare is characterised by the integration of economic growth with
social progress, ensuring that benefits reach every citizen, particularly the most
vulnerable. The government's role in this transformation has been pivotal, with a
focus on transparency, digitalization, and community participation.

Key Pillars of the New Welfare Approach

1. Empowerment Through Infrastructure and Services

○ Health and Sanitation: Programs like the Jal Jeevan Mission and
Ayushman Bharat have provided essential services such as clean
water and health coverage to millions, particularly in remote areas. For
example, Demchok village in Leh, located at a height of 13,800 feet,
received its first tap water connection in 2022, demonstrating the reach
and impact of these initiatives.
○ Housing and Sanitation: The Pradhan Mantri Awas Yojana (PMAY)
and Swachh Bharat Mission have transformed living conditions across
India by providing millions of homes and toilets, significantly improving
public health and hygiene.
2. Digitization and Transparency
○ Direct Benefit Transfer (DBT) and JAM Trinity: The DBT scheme,
supported by the Jan Dhan Yojana-Aadhaar-Mobile (JAM) trinity, has
been a game-changer in ensuring fiscal efficiency and minimising
leakages in welfare schemes. Over ₹38 lakh crore has been
transferred via DBT since its inception in 2013, directly benefiting
millions of citizens.
○ Outcome-Based Budgeting: The government has implemented a
goal-oriented approach to budgeting, where allocations are linked to
expected outcomes. This approach is complemented by the Outcome
Budget and the Output-Outcome Monitoring Framework, ensuring
accountability and effectiveness in welfare programs.
3. Community-Centric Programs

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○ Aspirational Districts Programme (ADP): The ADP exemplifies the

government’s commitment to inclusive growth by focusing on the most
underdeveloped districts in India. The program has led to significant
improvements in health, education, and infrastructure, as evidenced by
the success stories of districts like Baramulla in Jammu and Kashmir
and Gumla in Jharkhand.
4. Focus on Social Security
○ Affordable Social Security Schemes: The Atal Pension Yojana
(APY), PM Jeevan Jyoti Yojana (PMJJY), and PM Suraksha Bima
Yojana (PMSBY) have expanded the social safety net for unorganised
sector workers. These schemes provide financial security and health
coverage to millions, helping to reduce poverty and improve living
standards.
5. Corporate Social Responsibility (CSR)
○ Increased Private Sector Participation: The mandatory CSR
spending introduced in 2014 has led to a significant increase in
corporate contributions to social development. Companies have spent
over ₹1.53 lakh crore on CSR activities from 2014 to 2022, with a focus
on education, healthcare, rural development, and environmental
conservation.

Examples of Impact

● Digital Governance: The integration of Management Information Systems

(MIS) and centralised data access has improved governance across various
sectors. The Data Governance Quality Index (DGQI) initiative assesses the
data preparedness of ministries and departments, driving competition and
peer learning for better outcomes.
● Baramulla and Gumla: Both districts have transformed significantly under the
ADP, with improvements in health, education, and governance. For example,
Baramulla’s innovative use of ICT tools in education and Gumla’s Ragi
Mission, which empowered tribal women and increased agricultural
productivity, are notable success stories.

Conclusion India’s new approach to welfare is holistic and forward-looking, focusing

on empowerment through infrastructure, digital governance, and community
participation leading to self sufficiency. This paradigm shift aims to not only provide
immediate relief but also build a foundation for sustainable development, ensuring
that every citizen can contribute to and benefit from the country’s growth. As India
progresses towards its goal of becoming a developed nation by 2047, these new
approaches to welfare will play a crucial role in achieving inclusive and equitable
growth.

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Theme 13 : L13 : Non State Actors

Syllabus

● Pressure Groups and Formal/Informal Associations and their Role in the

Polity. (Polity)
● Development Processes and the Development Industry — the Role of
NGOs, SHGs, various groups and associations, donors, charities,
institutional and other stakeholders. (Governance)

PYQS

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Pressure Groups in India:

Pressure groups are a vital component of democratic governance, playing a critical

role in influencing government policies and decision-making processes without
seeking direct control over political power. In India, pressure groups have become
increasingly significant, representing a diverse array of interests and issues that
reflect the complex social, economic, and political landscape of the country.

Meaning of Pressure Groups

Pressure groups, also known as interest groups, advocacy groups, or lobby groups,
are organised associations that seek to influence government policy and decisions in
favour of their members' interests. Unlike political parties, which aim to gain control
of the government to implement a broad political agenda, pressure groups focus on
specific issues or sectors, working to ensure that laws, regulations, and government
actions are favourable to their interests.

The concept of pressure groups gained prominence during the industrial revolution,
particularly in Western countries, where the rise of market economies, trusts, and
monopolies necessitated organised efforts to influence government policy. In India,
pressure groups emerged in various forms as the state expanded its role in
economic and social regulation, providing both dominant and marginalised sections
of society with a platform to articulate their interests and exert pressure on the
government.

Characteristics of Pressure Groups

Pressure groups in India exhibit several defining characteristics:

● Interest-Based Organization: Pressure groups are organised around

specific interests, such as economic, social, religious, or political concerns.
These groups work to influence the political system in ways that protect and
promote their particular interests.
● Use of Modern and Traditional Methods: Pressure groups in India employ a
combination of modern techniques, such as lobbying, media campaigns, and
public relations efforts, alongside traditional methods, such as mobilising
caste, religious, or regional identities to achieve their goals.
● Responsive to Resource Scarcity: In a country like India, where resources
are often scarce, pressure groups frequently emerge to secure a share of
these limited resources for their members, reflecting the intense competition
for government support and benefits.
● Expression of Changing Social Consciousness: Pressure groups also
reflect the evolving consciousness of different segments of society. As
economic conditions change and political awareness grows, new pressure
groups emerge to articulate the interests of these groups.

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Classification of Pressure Groups

Pressure groups in India can be classified into several categories based on their
structure, organisation, and the interests they represent:

1. Institutional Interest Groups: These groups are part of the formal

government machinery and consist of professionally employed individuals
who exert influence within the framework of government institutions.
Examples include civil services associations like the West Bengal Civil
Services Association. These groups often work within the system, using
constitutional means to press their demands.
2. Associational Interest Groups: These are organised, specialised groups
formed to articulate specific interests, such as business associations, trade
unions, professional organisations, and civic groups. They are focused on
particular goals and often have a more permanent structure. Examples
include the Federation of Indian Chambers of Commerce and Industry
(FICCI), the Indian Medical Association (IMA), and the All India Trade Union
Congress (AITUC).
3. Anomic Interest Groups: These groups are characterised by spontaneous,
unorganised activities such as protests, demonstrations, and riots. They often
arise in response to specific issues or events and may employ both
constitutional and unconstitutional methods. Examples include groups that
organise mass protests or social movements, such as the anti-corruption
movement led by Anna Hazare.
4. Non-Associational Interest Groups: These groups are based on kinship,
caste, religion, or ethnicity and typically operate with an informal structure.
They represent the interests of specific communities and often work behind
the scenes to influence policy decisions. Examples include caste-based
organisations like the Scheduled Caste Federation and religious groups like
the Vishwa Hindu Parishad (VHP).

Types of Pressure Groups in India

The diversity of pressure groups in India reflects the country’s complex social fabric.
The major types of pressure groups include:

● Business Groups: Business groups are among the most powerful and
organised pressure groups in India. They represent the interests of the
industrial and commercial sectors and are often involved in lobbying for
favourable economic policies, tax regulations, and trade agreements.
Prominent examples include the Confederation of Indian Industry (CII) and the
Associated Chambers of Commerce and Industry of India (ASSOCHAM).
These groups have significant resources and influence, allowing them to play
a major role in shaping government policy.

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● Labor Unions: Labor unions represent the interests of workers across

various sectors, focusing on issues such as wages, working conditions, and
job security. Labour unions in India are often affiliated with political parties,
and their activities can range from peaceful negotiations to strikes and
protests. Key examples include the Indian National Trade Union Congress
(INTUC) and the Bharatiya Mazdoor Sangh (BMS). These unions have been
instrumental in shaping labour laws and improving workers' rights.
● Farmers' Groups: Farmers' groups advocate for the interests of the
agricultural community, including issues such as fair pricing, subsidies, and
land rights. These groups gained prominence with the Green Revolution and
various land reform movements. The Bharatiya Kisan Union (BKU) and the All
India Kisan Sabha are notable examples. Farmers' groups have a strong
presence at the grassroots level and often mobilise large-scale protests to
influence government policies.
● Community and Caste-Based Groups: These groups represent specific
religious, caste, or ethnic communities and work to secure social, economic,
and political benefits for their members. Caste-based organisations like the
Backward Caste Federation and religious groups like the Northern and
Southern India Christian Conference exemplify such groups. These groups
often play a significant role in influencing policies related to affirmative action,
minority rights, and social justice.
● Professional Associations: Professional groups represent the interests of
specific professions, such as doctors, lawyers, and teachers. They focus on
issues like professional standards, working conditions, and education policies.
Examples include the Indian Medical Association (IMA) and the Bar Council of
India.
● Student Organisations: Student groups have historically played a vital role in
Indian politics, both before and after independence. They act as pressure
groups on issues related to education, employment, and political participation.
Examples include the National Students Union of India (NSUI) and the All
India Students Federation (AISF).

Nature of Pressure Groups in India

The nature of pressure groups in India is shaped by the country’s diverse social,
economic, and political landscape. Some of the key characteristics include:

● Diverse and Fragmented: Indian pressure groups are highly diverse,

reflecting the country’s complex social structure. They are often fragmented
along lines of caste, religion, region, and language, which can limit their
effectiveness but also allows them to represent a wide array of interests.
● Close Ties with Political Parties: Many pressure groups in India have close
ties with political parties, which can sometimes blur the line between the two.
For example, labour unions are often affiliated with specific political parties,

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and some pressure groups have even evolved into political parties, such as
the Shiv Sena in Maharashtra.
● Focus on Domestic Issues: Indian pressure groups tend to focus primarily
on domestic policy issues, such as economic development, social justice, and
regional autonomy. While Western pressure groups may also engage in
foreign policy issues, Indian groups are more concerned with domestic
matters that directly affect their members.
● Evolving with Social Consciousness: Pressure groups in India often
emerge in response to changing social and economic conditions. As new
issues arise and public awareness grows, new pressure groups are formed to
address these concerns.

Methods and Techniques of Operation

Pressure groups in India employ a variety of methods to achieve their objectives:

1. Lobbying: Lobbying is one of the most common and effective methods used
by pressure groups in India. It involves direct interaction with policymakers,
legislators, and government officials to influence the formulation and
implementation of laws and policies. Business groups and professional
associations are particularly active in lobbying efforts, often providing
research, data, and expert opinions to support their positions.
2. Public Campaigns and Agitation: Public campaigns and agitation are widely
used methods, especially by labour unions, farmers' groups, and community
organisations. These activities include strikes, protests, rallies, and
demonstrations aimed at drawing public attention to specific issues and
pressuring the government to act. The farmers' protests in 2020-2021 against
agricultural reform laws are a prominent example of this method.
3. Legal Action: Legal action, particularly through public interest litigation (PIL),
is a method used by many pressure groups to challenge government policies
or actions in court. Environmental groups, human rights organisations, and
civil society groups often resort to this method to protect the rights of
marginalised communities or to enforce environmental and social regulations.
4. Media Utilisation: The mass media, including print, television, and social
media, is a powerful tool for pressure groups to shape public opinion and
influence policymakers. By generating public awareness and debate on
specific issues, pressure groups can create a favourable climate for their
causes. Media campaigns are often used in conjunction with other methods,
such as lobbying and public agitation.
5. Funding Political Parties: Some pressure groups influence political parties
by providing financial support, particularly during election campaigns. This
financial backing creates a dependency, making it difficult for political parties
to oppose the interests of these groups. Business groups and wealthy
individuals often use this method to protect their economic interests.

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6. Mobilisational Techniques: Mobilisation involves rallying public support for a

cause and can include organising mass movements, petition drives, and
grassroots campaigns. Pressure groups may also use social media platforms
to mobilise support quickly and effectively, particularly among younger
demographics.

Comparison with Western Pressure Groups

While pressure groups operate in both India and Western democracies, there are
notable differences in their structure, influence, and methods:

● Influence on Government: In Western democracies, particularly in the

United States, pressure groups are often seen as the "fourth branch" of
government due to their significant influence on public policy. In India, while
pressure groups are influential, their impact is often more limited and focused
on specific issues rather than the broader political landscape.
● Relationship with Political Parties: In India, pressure groups often have
close ties with political parties, sometimes evolving into political parties
themselves. This close relationship is less common in Western democracies,
where pressure groups typically maintain a distinct identity from political
parties.
● Focus of Activities: Indian pressure groups are more likely to focus on
domestic policy issues, such as economic development, social justice, and
regional autonomy. In contrast, pressure groups in Western countries,
particularly in the United States, also exert considerable influence on foreign
policy and international relations.
● Public Perception and Legitimacy: Pressure groups in Western
democracies are often seen as legitimate actors in the political process,
whereas in India, they may be viewed with suspicion, particularly if they are
seen as representing narrow or sectarian interests.

Challenges and Limitations

Pressure groups in India face several challenges that limit their effectiveness:

● Fragmentation: Due to India's diverse social structure, pressure groups are

often fragmented along lines of caste, religion, region, and language. This
fragmentation can weaken their ability to exert unified and cohesive pressure
on the government.
● Corruption and Nepotism: The methods used by some pressure groups,
such as bribery, favouritism, and behind-the-scenes deals, have led to
widespread corruption. This undermines the democratic process and can lead
to public disillusionment with both the government and the pressure groups
themselves.

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● Resource Constraints: Many pressure groups, particularly those

representing marginalised communities, lack the financial and organisational
resources needed to exert significant influence on government policies. This
often leads to a disparity in influence, with wealthier and more organised
groups being more successful in achieving their goals.
● Short Lifespan: Some pressure groups in India have a short lifespan due to
the lack of sustained interest or resources. This transience can make it
difficult for these groups to achieve long-term goals or to build a strong
presence in the political landscape.

Successes and Contemporary Examples

Despite the challenges, pressure groups in India have achieved significant

successes, often bringing about important social and political changes:

● Narmada Bachao Andolan (NBA): This environmental and human rights

movement has been one of the most successful pressure groups in India. It
brought attention to the displacement of communities and environmental
degradation caused by the construction of large dams on the Narmada River.
The NBA’s sustained efforts led to increased scrutiny of dam projects and
greater awareness of the rights of displaced people.
● Mazdoor Kisan Shakti Sangathan (MKSS): This grassroots organisation in
Rajasthan played a pivotal role in the enactment of the Right to Information
(RTI) Act, which empowers citizens to demand transparency and
accountability from the government. The MKSS's success demonstrates the
power of pressure groups in promoting social justice and empowering
marginalised communities.
● Farmers' Protests (2020-2021): The large-scale protests by farmers against
the agricultural reform laws introduced by the Indian government in
2020-2021 showcased the influence of pressure groups in India. The protests,
which involved tens of thousands of farmers and lasted for over a year,
ultimately led the government to repeal the controversial laws, highlighting the
power of organised resistance.
● Environmental and Rights Movements: Contemporary movements such as
the Chipko Movement in the 1970s and more recent campaigns for
environmental justice and human rights have also been effective pressure
groups. These movements have not only raised awareness but have also
influenced policy decisions, such as the conservation of forests and the
protection of tribal rights.

Conclusion

Pressure groups are an integral part of the Indian political system, representing a
wide array of interests from across the diverse social fabric of the country. While they
face significant challenges, including fragmentation, corruption, and resource

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constraints, they have nonetheless played a crucial role in shaping public policy and
advocating for the rights of various communities. Their successes, such as the Right
to Information Act and the repeal of the farm laws, demonstrate their potential to
bring about meaningful change. The comparison with Western pressure groups
highlights both similarities and differences, underscoring the unique role these
groups play in India's democracy. As India continues to evolve, the role of pressure
groups will remain a key element in the interaction between the government and the
governed, ensuring that a wide range of voices are heard in the policymaking
process.

Non State Actors :

Introduction

In the evolving socio-economic and political landscape, the role of Non-State Actors
(NSAs), such as Non-Governmental Organisations (NGOs) and Self-Help Groups
(SHGs), has grown significantly in shaping developmental processes and addressing
the needs of marginalised communities. These entities, collectively part of civil
society organisations (CSOs), operate independently from the state and play a
crucial role in advocating for social justice, promoting economic empowerment, and
enhancing democratic processes. This note delves into the comprehensive roles,
significance, challenges, and contemporary relevance of NGOs and SHGs, drawing
upon specific examples and data to provide a holistic understanding.

Role and Significance of NGOs in Developmental Processes

Advocacy and Policy Influence

NGOs are essential advocates for the marginalised, often acting as the "voices of the
voiceless." They work tirelessly to demand and protect the rights of vulnerable
sections of society, such as LGBTQIA communities, prisoners, and minorities.
Advocacy efforts by organisations like the NAZ Foundation, which fought for the
recognition of LGBTQIA rights, and the People's Union for Civil Liberties (PUCL),
which championed prison reforms, exemplify the critical role NGOs play in driving
social change. NGOs also use strategic tools like Public Interest Litigation (PIL) to
influence judicial decisions and policy-making.

Additionally, NGOs contribute to ensuring state accountability and empowering

voters to make informed decisions. Organisations such as PRS India provide
in-depth research, analysis, and commentary on legislative developments, helping to
educate the electorate. The Right to Information (RTI) Act, a landmark in promoting
transparency, was the result of sustained advocacy by the Mazdoor Kisan Shakti
Sangathan (MKSS), showcasing the pivotal role NGOs play in shaping democratic
governance.

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Instrumental in Policy Formulation and Implementation

NGOs are increasingly recognized for their contribution to policy formulation. By

conducting ground-level research and preparing detailed reports, they provide
valuable insights that influence policy decisions. For instance, Pratham's Annual
Status of Education Report (ASER) has been crucial in shaping India's educational
policies, highlighting areas that need attention and providing data-driven
recommendations.

Furthermore, NGOs play a significant role in the implementation of government

policies, particularly in areas where state reach is limited. They act as intermediaries,
filling the gaps left by the state and market, and ensuring last-mile delivery of
services. For example, the Akshaya Patra Foundation has been instrumental in the
Mid-Day Meal Scheme, providing nutritious meals to millions of school children,
thereby addressing both hunger and education simultaneously.

Judicial Activism and Environmental Conservation

NGOs have been pivotal in encouraging judicial activism to address gaps in

legislation and protect vulnerable communities.

In the context of women, The Vishakha Guidelines, which laid the foundation for laws
against sexual harassment at the workplace, were a direct result of NGO-led
activism.

In the realm of environmental conservation, NGOs have played a critical role in

raising awareness and advocating for sustainable development. Movements such as
the Narmada Bachao Andolan and the Chipko Movement, led by grassroots
organisations, have brought attention to the adverse effects of large-scale
developmental projects on the environment and local communities. Additionally,
animal rights organisations like PETA (People for the Ethical Treatment of Animals)
have been at the forefront of campaigns against animal cruelty, advocating for ethical
treatment and conservation of animal rights.

Political Activism and Associated Issues

While NGOs contribute positively to social development, they are sometimes

accused of engaging in political activism that aligns with specific political agendas or
foreign interests. This has led to controversies, particularly when NGOs are seen as
obstructing development projects. The Intelligence Bureau (IB) report, for instance,
highlighted concerns about foreign-funded NGOs like Greenpeace, accusing them of
stalling India’s growth by protesting against critical projects such as thermal power
plants, nuclear energy projects (e.g., the Kudankulam Nuclear Power Plant in Tamil
Nadu), and genetically modified (GM) crops.

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These allegations underscore the delicate balance NGOs must maintain between
advocacy and political neutrality. Instances of funds being diverted for unintended
purposes, such as money laundering or promoting anti-national activities, have led to
increased scrutiny and regulatory oversight.

Challenges Faced by NGOs

Regulatory Environment and Government Scrutiny

The regulatory framework governing NGOs in India has become increasingly

stringent, particularly with the enforcement of the Foreign Contribution Regulation
Act (FCRA) 2010, amended in 2020. This act imposes strict controls on NGOs
receiving foreign funds, including mandatory registration with the State Bank of India,
restrictions on administrative expenses (capped at 20%), and compulsory Aadhaar
identification for employees. These measures aim to enhance transparency and
prevent the misuse of funds for activities deemed detrimental to national interests.

However, these regulations have also posed significant operational challenges for
many NGOs. For instance, the suspension of Greenpeace India’s license in 2015 for
failing to adhere to FCRA norms and the cessation of Amnesty International's
operations in India in 2020 over allegations of inciting discontent and financial
irregularities highlight the increasing pressure on NGOs to comply with stringent
governmental norms.

Capacity Building, Transparency, and Internal Challenges

Many NGOs in India struggle with inadequate capacity building and a lack of skilled
personnel, particularly in digital skills and specialised areas. The predominance of
generalists rather than specialists within NGOs hampers their ability to address
complex developmental challenges effectively.

Issues of transparency and accountability within NGOs are also prevalent. According
to data, only about 10% of NGOs in India regularly file their annual income and
expenditure statements, leading to questions about their financial integrity. This lack
of transparency often creates an aversion among potential donors, thereby limiting
the resources available to NGOs for their operations.

Furthermore, the relationship between NGOs and the state is often fraught with
tension, particularly when NGOs are perceived as hindering development projects.
The conflict between NGOs’ advocacy roles and state interests can lead to
allegations of NGOs being anti-national or obstructing progress, as seen in the cases
highlighted by the IB report.

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Role and Significance of Self-Help Groups (SHGs)

Socio-Economic Empowerment and Poverty Alleviation

Self-Help Groups (SHGs) are informal associations of people, primarily women, who
come together voluntarily to improve their socio-economic conditions. These groups
provide a platform for collective action, enabling members to pool resources, access
credit, and undertake income-generating activities. The SHG movement gained
momentum in the 1970s with initiatives like the Self Employed Women's Association
(SEWA) in Gujarat and the Kudumbashree program in Kerala, and further expanded
in the 1990s with NABARD's SHG-Bank Linkage Program.

SHGs play a critical role in poverty alleviation by providing easier access to

microcredit, which helps members start micro-enterprises and reduce their reliance
on exploitative moneylenders. The National Rural Livelihood Mission’s (NRLM)

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"Lakhpati Didi" scheme, which aims to create women entrepreneurs who earn at
least INR 1 lakh annually, is a contemporary example of SHGs empowering women
economically.

NABARD surveys indicate that over 55% of households covered by SHGs have
reported an increase in assets, with the average value of assets per household
increasing by 70%. Employment expanded by 18%, and the number of households
below the poverty line dropped significantly from 40% to 22% after joining SHGs.

Women Empowerment and Social Justice

SHGs have been instrumental in empowering women by providing them with

financial independence and opportunities for entrepreneurship. This empowerment
extends beyond economic benefits, as women in SHGs often gain greater social
status, autonomy in household decisions, and improved leadership skills. For
example, many SHG members have successfully contested elections in the
Panchayati Raj system, translating their leadership within SHGs into political
representation.

Furthermore, SHGs provide a support system that helps women address issues like
domestic violence, addiction, and reproductive health. Training and awareness
programs conducted by SHGs have led to better health outcomes for women and
children, with more women becoming aware of their reproductive rights and the
importance of institutional deliveries.

Financial Inclusion and Market Linkages

SHGs act as intermediaries between banks and their members, facilitating access to
formal financial services and promoting financial inclusion. The SHG-Bank Linkage
Program has been particularly successful in this regard, with a threefold increase in
savings and a significant reduction in reliance on informal moneylenders.

However, SHGs face challenges in scaling up their activities due to limited market
access and the absence of proper branding and marketing strategies. Many SHGs
operate in remote areas, where logistical challenges and a lack of technological
adoption hinder their ability to reach larger markets and fetch better prices for their
products.

Challenges and Issues Faced by SHGs

Regional Disparity and Limited Value Addition

Despite their success, SHGs are unevenly distributed across India, with a significant
concentration in southern states like Kerala and Tamil Nadu. In contrast, states like
Bihar, Uttar Pradesh, and the northeastern regions have relatively fewer SHGs,
leading to regional disparities in the impact of the SHG movement.

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Moreover, many SHGs engage in activities that involve limited value addition, such
as basic agricultural production or traditional handicrafts. This lack of value addition
often results in subsistence-level wages and limited economic growth for SHG
members. The Second Administrative Reforms Commission (ARC) has highlighted
the need for skill upgradation and better linkages with markets to enhance the
income-generating potential of SHGs.

Exploitation and Financial Mismanagement

Internal issues within SHGs, such as exploitation by dominant members and

financial mismanagement, pose significant challenges. In some cases, stronger
members of an SHG may take advantage of the illiteracy or ignorance of others to
claim a disproportionate share of profits. Additionally, the use of SHG funds for
non-productive purposes, such as weddings or house construction, undermines the
group’s economic objectives.

Commercial banks also exhibit a bias against SHGs, often preferring to lend to larger
enterprises due to concerns about non-performing assets (NPAs) in microfinance.
This reluctance to provide adequate credit limits the growth potential of SHGs and
hinders their ability to scale up operations.

Government Initiatives and Way Forward

Strengthening the Regulatory Framework

To address the challenges faced by NGOs and SHGs, the Indian government has
implemented several initiatives aimed at improving transparency, accountability, and
operational efficiency. The National Policy on the Voluntary Sector (2017)
emphasises the government’s role in enabling, encouraging, and empowering
voluntary organisations to function effectively. This policy advocates for the creation
of an environment that allows NGOs to mobilise resources and operate without
undue interference.

The NGO-DARPAN portal is another significant step towards promoting

transparency. It serves as a repository of information on NGOs across various
sectors and states, facilitating partnerships between the government and NGOs.

Enhancing the Role of SHGs

The government has also recognized the need to expand the SHG movement to
underrepresented regions, such as the BIMARU (Bihar, Madhya Pradesh,
Rajasthan, and Uttar Pradesh) states and the northeastern region, to ensure
inclusive development. Efforts to extend the SHG model to urban areas are also
underway, acknowledging the growing need for organised financial support and
empowerment in cities.

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Additionally, commercial banks and NABARD are encouraged to innovate and

design new financial products tailored to the needs of SHGs. This includes providing
better training, improving market linkages, and supporting SHGs in adopting
technology to reach wider markets and enhance their productivity.

The Second ARC’s recommendations emphasise the importance of treating SHGs

as potential entrepreneurs rather than mere beneficiaries of government schemes.
By fostering a positive attitude among government officials and financial institutions,
SHGs can be better integrated into the formal economy, contributing to poverty
reduction and economic growth.

Conclusion

Non-State Actors, including NGOs and SHGs, play a vital role in India’s development
by bridging gaps between the state and citizens, advocating for marginalised
communities, and promoting socio-economic empowerment. While they face
significant challenges, including stringent regulatory environments, internal
governance issues, and financial constraints, their contributions to social justice,
environmental conservation, and poverty alleviation are indispensable.

To maximise their impact, it is crucial to address these challenges through supportive

policies, capacity building, and enhanced transparency. By doing so, NGOs and
SHGs can continue to serve as catalysts for equitable and sustainable development,
ensuring that the benefits of growth reach all sections of society.

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Theme 14 : L14.1 : Good Governance : Electoral Governance

Syllabus

● Salient Features of RoPA

● ECI

PYQs

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Key Data Driven Insights of the 2024 LS Elections :

Detailed Note on Insights from the Lok Sabha Elections 2024 Analysis Report

1. Voter Turnout

● The voter turnout for the Lok Sabha Elections 2024 was 66.12%, slightly
lower than the 67.35% in 2019.
● The highest voter turnout was recorded in the Dhubri constituency in Assam
(92.21%), while the lowest was in Srinagar, Jammu and Kashmir (38.63%).

2. Vote Share of Winners

● Winners in 2024 secured an average of 50.58% of the total votes polled, a

decrease from the 52.65% in 2019.
● 279 winners (51%) secured over 50% of the votes in their constituencies,
while 263 winners (49%) won with less than 50% of the vote share.
● Notably, BJP candidates dominated the highest vote share categories, with
Shankar Lalwani from Indore leading with a 78.54% vote share.

3. Representativeness of Winners

● Winners represented an average of 33.44% of the total registered voters,

slightly lower than the 35.46% in 2019.
● This indicates that the elected representatives are backed by roughly
one-third of the electorate in their constituencies, reflecting potential issues in
the representativeness of the electoral system.

4. Margin of Victory

● Five candidates won with a margin of less than 2,000 votes, highlighting
closely contested seats.
● On the other end, five winners secured victory with a margin of over 50%,
showcasing strong mandates in certain constituencies.
● Shivraj Singh Chouhan (BJP) from Vidisha won with the highest margin of
56.43%.

5. Performance of Winners with Criminal Backgrounds

● 106 out of 251 winners with declared criminal cases secured more than 50%
of the vote share.
● 112 winners with criminal backgrounds defeated opponents with clean
records, with 7 of these winners securing over 30% margin of victory.

6. Crorepati vs Non-Crorepati Winners

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● 52% of crorepati winners (wealthy candidates) won with more than 50% of the
vote share.
● Among non-crorepati winners, 44% secured more than 50% of the vote share.
● Shankar Lalwani (BJP) from Indore had the highest margin of victory among
crorepati winners, with 64.54%.

7. Performance of Women Winners

● Out of 542 winners, 74 were women.

● None of the women winners had a vote share below 30%.
● Kriti Devi Debbarman (BJP) from Tripura East had the highest vote share
among women at 68.54%.

8. Re-elected Winners

● 214 winners were re-elected, with 101 securing more than 50% of the vote
share.
● 92 re-elected winners won with a margin of less than 10%, indicating many
incumbents faced stiff competition.

9. NOTA (None of the Above) Votes

● The NOTA option, allowing voters to reject all candidates, accounted for
0.99% of the total votes in 2024, a slight decrease from 1.06% in 2019.
● The highest NOTA vote share was in Indore, Madhya Pradesh, where 14% of
the votes were for NOTA.

10. Party Representation

● There was a 12% increase in the number of political parties participating in

the 2024 elections compared to 2019.
● The BJP won the highest number of seats but saw a decline in its vote share
from 31.38% in 2019 to 24.33% in 2024.
● The Indian National Congress (INC) increased its representation from 52 to
99 seats, with a corresponding increase in vote share from 4.28% to 8.40%.

11. State-wise and Constituency-specific Analysis

● Detailed analyses of individual states and constituencies show varied voter

behaviour, with significant differences in voter turnout, vote share, and margin
of victory across regions.
● Some constituencies displayed significantly high voter turnout and vote share
percentages, reflecting strong regional political dynamics.

Essentials of India's Electoral System

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India's electoral system is a fundamental aspect of its democratic framework. It

operates under a parliamentary system of government, with a commitment to
regular, free, and fair elections as mandated by the Constitution. These elections
determine the composition of various levels of government, including the Lok Sabha
(House of the People), Rajya Sabha (Council of States), State Legislative
Assemblies, and the offices of the President and Vice-President.

Key Features of the Electoral System:

1. First-Past-The-Post (FPTP) System: India uses the FPTP system for elections
to the Lok Sabha and State Legislative Assemblies. In this system, the
candidate with the most votes in a constituency wins the seat, irrespective of
whether they secure a majority of the votes.
2. Constituencies and Delimitation: India is divided into 543 territorial
parliamentary constituencies, each electing one member to the Lok Sabha.
The delimitation of these constituencies is done to ensure equal
representation, with adjustments made based on population changes as per
the census.
3. Reserved Seats: The Constitution mandates the reservation of seats for
Scheduled Castes (SCs) and Scheduled Tribes (STs) to ensure their
representation in the legislative process. Currently, there are 79 seats
reserved for SCs and 41 for STs in the Lok Sabha.
4. Election Commission of India: The Election Commission is a permanent
constitutional body responsible for administering elections. It is insulated from
executive interference and operates independently to ensure the integrity of
the electoral process.

Comparison with Other Electoral Systems Globally

Globally, various electoral systems are in place, each with distinct characteristics and
implications:

1. Proportional Representation (PR): Unlike India's FPTP system, PR is

designed to allocate seats in proportion to the votes received by each party.
This system is common in many European countries. It tends to produce more
representative outcomes, as it minimises wasted votes and allows for a
broader spectrum of political parties to gain representation.
2. Mixed-Member Proportional (MMP): Countries like Germany and New
Zealand use MMP, a hybrid system combining FPTP and PR. Voters cast two
votes—one for a candidate in their constituency and another for a party. This
system aims to balance the direct representation of FPTP with the
proportionality of PR.
3. Preferential Voting: Used in countries like Australia, preferential voting
requires voters to rank candidates in order of preference. If no candidate
secures a majority of first-preference votes, the candidate with the fewest

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votes is eliminated, and their votes are redistributed based on second

preferences. This process continues until a candidate wins a majority.

Challenges with India's Electoral System

India's FPTP system has faced several criticisms and challenges:

1. Disproportionality: The FPTP system often leads to a significant mismatch

between the percentage of votes a party receives and the percentage of seats
it wins. For example, in the 2014 general elections, the BJP won over 50% of
parliamentary seats with only 31% of the vote.
2. Wasted Votes: A large number of votes do not contribute to the election of any
candidate, particularly in constituencies where the winning candidate secures
less than 30% of the vote. This can lead to voter disenfranchisement and a
sense that their vote doesn't matter.
3. Minoritarian Rule: FPTP can result in a "minoritarian" government where a
party forms a government with only a small share of the total vote, potentially
marginalising large sections of the population.
4. Fragmented Politics: The rise of regional parties has led to fragmented
politics, making it difficult to form stable governments. FPTP exacerbates this
by favouring parties with concentrated support in specific regions over those
with broad but shallow national support.

Proposed Reforms and Improvements

To address the shortcomings of the current electoral system, several reforms have
been proposed:

1. Hybrid Systems: The Law Commission of India has recommended a hybrid

system that combines FPTP with proportional representation. This would
involve expanding the Lok Sabha by adding seats filled through PR, while
retaining the current FPTP seats. Such a system could improve
representativeness while maintaining the stability associated with FPTP.
2. Lowering the Threshold for Victory: Implementing measures like preferential
voting could help ensure that elected representatives have broader support
within their constituencies. This would reduce the impact of vote splitting and
ensure that the elected candidate enjoys majority support.
3. Electoral Reforms to Enhance Representation: Strengthening the relationship
between voters and their representatives through reforms such as delimitation
based on the latest census data, better voter registration processes, and
ensuring easier access to polling stations.
4. Introduction of Proportional Elements: Incorporating proportional elements
could help prevent the disenfranchisement of voters and encourage more
balanced representation of various social groups and political perspectives.

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Conclusion

India’s electoral system, while successful in many respects, faces significant

challenges that could be addressed through thoughtful reforms. The introduction of a
hybrid system that incorporates elements of proportional representation, along with
other electoral reforms, could enhance the representativeness, fairness, and
effectiveness of India's democracy. Balancing stability with inclusiveness will be key
to any successful reform of India's electoral system.

Political Parties in India

Political parties are central to the functioning of democratic societies, serving as the
primary link between the state and its citizens. In India, political parties play a crucial
role in governance, providing the framework within which political competition
occurs, policies are debated, and governments are formed.

Theoretical Foundations of Political Parties

Political parties are intermediary organisations that connect the state with society.
According to theorists like Edmund Burke, a political party is a group of individuals
united by shared beliefs about public interest and national principles. Over time,
parties have evolved from factions, initially viewed with suspicion, into essential
components of democratic governance. They perform multiple functions, including
aggregating public demands, selecting candidates for public office, and organising
electoral competition.

Maurice Duverger's typology categorises political parties based on their

organisational structure and functions. He identified four types:

1. Caucus: A small, elite group with limited membership focused on electoral

success.
2. Branch: A more inclusive organisation aiming for mass membership and
widespread support.
3. Cell: A small, permanent group with an occupational basis, common in
communist parties.
4. Militia: A militaristic, disciplined group, often associated with fascist parties.

In the Indian context, political parties do not fit neatly into these categories but often
exhibit characteristics of multiple types

Classification of Political Parties

The Election Commission of India classifies political parties into three categories:

1. National Parties: These parties have a broad geographical base, with

support across multiple states. They must secure a minimum percentage of

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votes or seats in multiple states to qualify as a national party. Examples

include the INC and BJP.
2. State Parties: These parties have significant influence within a particular
state. They must meet certain criteria related to vote share or seat count
within the state to be recognized as a state party. Examples include the DMK,
Shiv Sena, and Telugu Desam Party (TDP).
3. Registered (Unrecognized) Parties: These are smaller parties that do not
meet the criteria for national or state recognition but are officially registered
with the Election Commission.

Ideology and Identity in Indian Political Parties

The ideological landscape of Indian political parties is complex and differs

significantly from the traditional left-right continuum seen in Western democracies.
According to Chhibber and Verma, the main ideological cleavages in India revolve
around two axes:

1. Statism: Debates around the role of the state in regulating society,

redistributing resources, and implementing affirmative action.
2. Recognition: Issues related to the accommodation and protection of minority
rights and cultural identities.

These ideological divides have shaped the evolution of party systems in India. For
example, the BJP has successfully mobilised support by opposing what it perceives
as excessive state intervention in social issues while promoting a majoritarian
nationalist agenda.

Party Systems and Electoral Dynamics

India's party system has undergone several transformations since independence:

1. Congress System (1952-1967): The INC dominated national politics, facing

little effective opposition.
2. Second-Party System (1967-1989): The INC's dominance began to wane,
with regional parties and the Janata Party emerging as significant challengers.
3. Third-Party System (1989-2014): Coalition governments became the norm,
with no single party securing a clear majority. The BJP emerged as a major
national party during this period.
4. Fourth-Party System (2014-present): The BJP has become the dominant
party, winning clear majorities in the 2014, 2019, and 2024 general elections.
However, the 2024 results signal the beginning of the coalition era all over
again.

The rise of the BJP and the declining influence of the INC have significantly
reshaped the Indian party system. However, regional parties continue to play a
crucial role, particularly in states where the BJP or INC have less influence.

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Challenges Facing Political Parties in India

1. Dynastic Politics: Many Indian political parties, particularly the INC, have
been criticised for promoting dynastic leadership, which undermines internal
democracy and meritocracy.
2. Caste and Communal Politics: Indian parties often mobilise support based
on caste and religious identities, leading to the entrenchment of divisive social
cleavages.
3. Electoral Integrity: Issues such as vote-buying, patronage politics, and
electoral violence continue to challenge the integrity of the electoral process.
4. Ideological Coherence: Many parties, especially regional ones, struggle to
maintain a coherent ideological stance, often prioritising electoral success
over consistent policy positions.

Role of Regional Parties in Indian Politics

Regional parties have played a significant and often decisive role in Indian politics,
particularly since the decline of the INC's dominance in the late 1960s. These parties
typically focus on state-specific issues, ethnic or linguistic identities, and regional
interests, which resonate deeply with local electorates.

Key Roles of Regional Parties:

1. State-Centric Governance: Regional parties have often formed governments

in individual states, pushing for policies that directly address local needs. For
example, the Dravida Munnetra Kazhagam (DMK) and All India Anna Dravida
Munnetra Kazhagam (AIADMK) in Tamil Nadu have focused on Tamil identity
and state welfare policies.
2. Influence in National Coalitions: During the Coalition Era (1989-2014),
regional parties became kingmakers in national politics. Their support was
crucial for the formation and stability of coalition governments. The Janata Dal
(United) in Bihar and the Trinamool Congress in West Bengal are examples of
regional parties that have had significant national influence.
3. Advocacy for Federalism: Regional parties often advocate for greater
federalism and devolution of powers to the states, challenging the centralizing
tendencies of national parties like the INC and BJP.
4. Representation of Regional Diversity: India's vast regional diversity is
reflected in the success of regional parties, which provide a platform for
regional voices in the national political arena. This has been particularly
important in ensuring that the interests of smaller states and communities are
not overlooked.

Reforms and the Future of Political Parties

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To address the challenges facing political parties in India, several reforms have been
proposed:

1. Internal Democracy: Strengthening internal party democracy to reduce the

influence of dynastic politics and ensure greater accountability.
2. Electoral Reforms: Implementing measures to curb electoral malpractices,
such as stricter enforcement of campaign finance regulations and voter
education initiatives.
3. Greater Ideological Clarity: Encouraging parties to articulate clear policy
platforms that go beyond identity-based politics, fostering a more substantive
political discourse.

The future of political parties in India will depend on their ability to adapt to the
changing social and political landscape, maintain internal coherence, and effectively
represent the diverse interests of the Indian electorate.

Conclusion

Political parties in India are dynamic entities that play a critical role in shaping the
country's democratic process. Despite the challenges they face, including the
pressures of maintaining internal democracy, managing social cleavages, and
upholding electoral integrity, they remain indispensable to the functioning of India's
parliamentary democracy. The evolution of party systems in India reflects the
broader socio-political changes in the country, with the rise of the BJP as a dominant
force marking the latest phase in this ongoing process. The future trajectory of Indian
political parties will be shaped by their ability to address these challenges and
continue to evolve in response to the needs and aspirations of the Indian people.
Regional parties, despite the dominance of national parties like the BJP, will continue
to play a pivotal role in representing India's diverse and pluralistic society.

The Election Commission of India (ECI)

Context and Evolution

Historical Context: The Election Commission of India (ECI) was established on

January 25, 1950, as a permanent constitutional body responsible for ensuring the
conduct of free and fair elections in India. This was a pivotal moment in India's
democratic journey, as the newly independent nation sought to establish a robust
electoral system that could accommodate its vast and diverse population. The
founders of the Indian Constitution, deeply influenced by the principles of democracy,

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recognized the need for an independent and impartial body to oversee the electoral
process, which would be crucial for the legitimacy of the democratic system.

Evolution of the ECI: The ECI's evolution reflects the changing dynamics of India's
political landscape and the challenges of administering elections in one of the world's
largest democracies.

1. 1950-1989: Initial Phase and Single-Member Commission:

○ Initially, the ECI was a single-member body, comprising only the Chief
Election Commissioner (CEC). During this period, the ECI focused on
establishing the electoral framework, including the preparation of
electoral rolls, delimitation of constituencies, and conducting the first
general elections in 1951-52.
○ The early years were marked by the challenge of organizing elections
in a country with low literacy rates, deep social divisions, and a lack of
infrastructure. The success of the first general election, despite these
challenges, was a testament to the ECI's effectiveness.
2. 1989-1993: Transition to a Multi-Member Body:
○ The structure of the ECI was expanded in 1989 with the appointment of
two additional Election Commissioners, making it a multi-member body.
This move was aimed at enhancing the ECI's capacity to manage the
increasingly complex electoral process.
○ However, this transition was not smooth. In January 1990, the
government reverted to the single-member structure, but the
multi-member format was reinstated in 1993 and has continued since
then. The multi-member structure allowed for a more collaborative
decision-making process, which was necessary as the scale and
complexity of elections grew.
3. 1990s: Empowerment under T.N. Seshan:
○ The 1990s marked a turning point in the ECI's history, largely due to
the assertive leadership of Chief Election Commissioner T.N. Seshan.
He is credited with transforming the ECI into a powerful and assertive
institution, capable of enforcing election laws and ensuring adherence
to the Model Code of Conduct.
○ Seshan's tenure saw the introduction of several significant reforms,
including the use of voter identity cards, strict enforcement of spending
limits for candidates, and the monitoring of election campaigns. His
efforts significantly enhanced the credibility of the ECI and established
its reputation as an independent and powerful institution.
4. 2000s and Beyond: Technological Advancements and Electoral
Reforms:
○ In the 21st century, the ECI has continued to evolve, incorporating
technological innovations such as Electronic Voting Machines (EVMs)

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and the Voter Verifiable Paper Audit Trail (VVPAT) to enhance the
transparency and efficiency of the electoral process.
○ The ECI has also focused on expanding voter education and
awareness, particularly through initiatives like National Voters' Day,
which aims to increase voter participation, especially among the youth.

Key Constitutional Provisions

The Election Commission of India operates under the authority vested in it by several
key provisions of the Indian Constitution. These provisions ensure the
independence, integrity, and effectiveness of the ECI in conducting elections.

1. Article 324: Superintendence, Direction, and Control of Elections:

○ Article 324 of the Constitution provides the ECI with the power to
supervise, direct, and control elections to the Parliament, state
legislatures, and the offices of the President and Vice-President of
India. This article forms the bedrock of the ECI's authority, ensuring its
independence from executive influence.
○ The ECI's mandate under Article 324 is comprehensive, covering all
aspects of the electoral process, from the preparation of electoral rolls
to the announcement of election results. The ECI's powers under this
article have been interpreted broadly by the courts, allowing it to take
proactive measures to ensure free and fair elections.
2. Article 325: One General Electoral Roll:
○ Article 325 mandates that there shall be one general electoral roll for
every constituency, and no person shall be ineligible for inclusion in the
electoral roll on grounds of religion, race, caste, or sex. This provision
underscores the principle of universal adult suffrage and ensures that
the electoral process is inclusive and non-discriminatory.
○ The ECI is responsible for the preparation and maintenance of these
electoral rolls, a task that requires meticulous planning and regular
updates to reflect demographic changes.
3. Article 326: Elections to the Lok Sabha and Legislative Assemblies:
○ Article 326 provides for elections to the House of the People (Lok
Sabha) and the Legislative Assemblies of States based on adult
suffrage. It grants every citizen of India who is 18 years of age or older
the right to vote, ensuring that the electoral process is truly
representative.
○ The lowering of the voting age from 21 to 18 through the 61st
Constitutional Amendment in 1988 expanded the electorate
significantly, making voter education and engagement a critical function
of the ECI.
4. Article 327 & 328: Legislative Powers Over Elections:

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○ Articles 327 and 328 empower Parliament and State Legislatures to

make laws relating to elections, including the preparation of electoral
rolls, the delimitation of constituencies, and other related matters.
These articles provide the legal framework within which the ECI
operates.
○ The ECI plays a key role in advising the government on electoral
legislation and ensuring that laws are implemented effectively to
maintain the integrity of the electoral process.
5. Article 329: Bar on Judicial Interference:
○ Article 329 bars courts from interfering in electoral matters, ensuring
that election processes are not disrupted by legal challenges. This
article emphasises the finality of the ECI's decisions in the conduct of
elections.
○ However, disputes related to the validity of an election can be brought
before the judiciary in the form of election petitions after the results are
declared, with the High Courts and the Supreme Court serving as the
adjudicating bodies.

Role and Functions of the Election Commission

The ECI's role extends beyond merely conducting elections. It encompasses a wide
range of functions that are essential for maintaining the democratic process in India.

1. Preparation and Revision of Electoral Rolls:

○ The ECI is responsible for the preparation and periodic revision of
electoral rolls, ensuring that they are accurate and up-to-date. This
involves the inclusion of eligible voters, deletion of ineligible voters, and
correction of errors in the electoral rolls.
○ The ECI conducts continuous updating of the electoral rolls, with
special summary revisions before every general election. This process
is crucial for preventing electoral fraud and ensuring that every eligible
voter can exercise their right to vote.
2. Supervision and Conduct of Elections:
○ The ECI oversees the entire electoral process, from the announcement
of election schedules to the declaration of results. This includes the
delimitation of constituencies, management of election logistics, and
the deployment of security forces to ensure peaceful polling.
○ The ECI also has the authority to cancel or postpone elections in
specific constituencies in cases of large-scale electoral malpractices,
such as rigging or violence, as seen in various instances across India.
3. Recognition of Political Parties and Allotment of Symbols:
○ The ECI recognizes political parties as national, state, or regional
parties based on their performance in elections. This recognition
determines the privileges that parties receive, such as reserved

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symbols, broadcast time on public broadcasters, and eligibility for

financial assistance.
○ The ECI also allots symbols to political parties and independent
candidates, ensuring that voters can easily identify their preferred
candidates on the ballot.
4. Adjudication of Election Disputes:
○ The ECI has quasi-judicial powers to adjudicate disputes related to the
recognition of political parties and the allotment of symbols. It also
advises the President or Governors on matters related to the
disqualification of Members of Parliament or State Legislatures on
grounds such as defection.
○ The ECI's decisions in these matters are generally considered final,
although they can be challenged in courts under certain circumstances.
5. Enforcement of the Model Code of Conduct:
○ The ECI enforces the Model Code of Conduct, a set of guidelines
issued to political parties and candidates to ensure a level playing field
during elections. The code covers a wide range of issues, including
campaign conduct, use of government resources, and electoral
promises.
○ The ECI's strict enforcement of the Model Code has often led to
confrontations with political parties, but it has been crucial in curbing
the misuse of power and ensuring fair competition during elections.
6. Voter Education and Awareness:
○ The ECI conducts extensive voter education programs to increase
voter turnout and ensure informed voting. This includes campaigns
targeted at first-time voters, women, and marginalised communities, as
well as initiatives to promote ethical voting and discourage vote-buying.
○ The introduction of National Voters' Day on January 25th, celebrated
annually since 2011, is one of the ECI's key initiatives to engage young
voters and increase electoral participation.
7. Use of Technology:
○ The ECI has been a pioneer in the use of technology in elections,
introducing Electronic Voting Machines (EVMs) in the 1990s and the
Voter Verifiable Paper Audit Trail (VVPAT) system in recent years.
These technologies have significantly improved the accuracy and
transparency of the voting process.
○ The ECI continues to explore new technological solutions, such as
online voter registration, geo-tagging of polling stations, and real-time
monitoring of election processes, to enhance the efficiency and
security of elections.

Reforms and Challenges

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While the ECI has been instrumental in upholding the integrity of India's elections, it
faces several challenges that require ongoing reforms.

Recent Reforms:

1. Introduction of VVPATs:
○ The introduction of Voter Verifiable Paper Audit Trail (VVPAT)
machines was a major reform aimed at increasing the transparency
and verifiability of the voting process. VVPATs allow voters to verify that
their vote has been correctly recorded by generating a paper receipt of
the vote cast, which is stored in a secure box and can be used for
audits and recounts.
○ The use of VVPATs was extended to all polling stations during the 2019
general elections, reflecting the ECI's commitment to ensuring voter
confidence in the electoral process.
2. Stricter Enforcement of the Model Code of Conduct:
○ The ECI has taken significant steps to ensure the strict enforcement of
the Model Code of Conduct, particularly in the run-up to elections. This
includes monitoring the actions of political parties, scrutinising
campaign finance, and taking swift action against violations.
○ The ECI has also used technology, such as the cVIGIL app, to
empower citizens to report violations of the Model Code in real-time,
enhancing its enforcement capabilities.
3. Voter Registration Drives:
○ The ECI has intensified efforts to register new voters, particularly
among the youth and marginalised communities. Special drives are
conducted in educational institutions, and National Voters' Day is used
as a platform to encourage voter registration and participation.
○ These efforts have led to a significant increase in voter registration,
contributing to higher voter turnout in recent elections.
4. Accessibility Reforms:
○ The ECI has implemented several reforms to make the voting process
more accessible to people with disabilities. This includes the provision
of Braille ballots, ramps at polling stations, and transportation facilities
for voters with mobility issues.
○ The ECI has also introduced postal ballots for senior citizens, persons
with disabilities, and COVID-19 patients, ensuring that these groups
can participate in elections without facing undue hardship.

Challenges:

1. Appointment Process of Election Commissioners:

○ The process of appointing the Chief Election Commissioner (CEC) and
other Election Commissioners has been a contentious issue, with
concerns about the independence of the ECI from executive influence.

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The Chief Election Commissioner and Other Election Commissioners

(Appointment, Conditions of Service, and Term of Office) Act, 2023,
introduced changes to the appointment process that have been
challenged in the Supreme Court.
○ The Act has been criticised for replacing the Chief Justice of India (CJI)
with a Union Cabinet Minister in the committee that nominates Election
Commissioners, which many argue undermines the ECI's
independence. The outcome of this legal challenge could have
significant implications for the future of the ECI.
2. Electoral Integrity:
○ Ensuring the integrity of elections in a country as large and diverse as
India is a formidable challenge. Issues such as voter fraud, electoral
violence, and the influence of money and muscle power are persistent
problems that the ECI must continually address.
○ The ECI's efforts to tackle these issues include deploying large
numbers of security personnel to sensitive areas, implementing
measures to curb vote-buying, and closely monitoring campaign
finance. However, these challenges remain significant, particularly in
states with a history of electoral malpractice.
3. Decriminalisation of Politics:
○ The ECI has long advocated for reforms to prevent candidates with
serious criminal charges from contesting elections. Despite some
progress, this remains a critical issue in Indian politics. A significant
number of candidates and elected representatives have criminal cases
pending against them, which undermines public trust in the democratic
process.
○ The ECI has proposed several measures, including barring candidates
with serious criminal charges from contesting elections and
fast-tracking the disposal of election-related criminal cases. However,
the implementation of these reforms requires legislative action, which
has been slow to materialise.
4. Political Pressure:
○ As an autonomous body, the ECI is expected to operate free from
political influence. However, there have been concerns about political
pressure on the ECI, particularly in the context of high-stakes elections.
These concerns have been exacerbated by recent controversies
surrounding the appointment of Election Commissioners and
allegations of bias in the ECI's decisions.
○ The ECI's credibility depends on its ability to act impartially and resist
political pressure. Strengthening the institutional safeguards that
protect the ECI's independence is essential for maintaining public
confidence in the electoral process.

Proposed Reforms:

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1. Strengthening the Appointment Process:

○ To enhance the independence of the ECI, there is a need to revisit the
process of appointing the Chief Election Commissioner and other
Election Commissioners. Proposals include restoring the role of the
Chief Justice of India in the appointment process, as recommended by
the Supreme Court, and ensuring greater transparency and public
accountability in the selection of Election Commissioners.
2. Electoral Finance Reforms:
○ Addressing the role of money in elections is critical for ensuring a level
playing field. Reforms such as state funding of elections, stricter
regulations on campaign finance, and greater transparency in political
donations are necessary to curb the influence of wealth in the electoral
process.
○ The ECI has proposed several measures to improve financial
transparency, including mandatory disclosure of all political donations
and tighter controls on election spending. Implementing these reforms
would require amendments to existing laws and the creation of new
regulatory frameworks.
3. Enhancing Voter Participation:
○ Increasing voter turnout, particularly in urban and elite sections of
society where turnout is traditionally lower, is a key priority for the ECI.
This requires targeted voter education campaigns, greater use of
technology to simplify the voting process, and measures to address the
barriers that prevent certain groups from voting.
○ The ECI is also exploring ways to facilitate voting for Indian citizens
living abroad, including the possibility of allowing remote voting through
secure online platforms.
4. Greater Use of Technology:
○ While technology has already played a significant role in improving the
electoral process, there is potential for further innovation. The ECI is
considering the use of blockchain technology for secure and
transparent voting, real-time voter roll updates using Aadhaar data, and
the deployment of artificial intelligence to monitor election campaigns
for violations of the Model Code of Conduct.
○ These technological advancements could enhance the efficiency,
transparency, and security of elections, but they also require careful
consideration of privacy concerns and the potential for misuse.

Conclusion

The Election Commission of India has played a pivotal role in upholding the
democratic process in India, overseeing the conduct of elections in the world's
largest democracy. Its evolution reflects the challenges and complexities of

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administering elections in a diverse and populous nation, and its success is a

testament to the strength of India's democratic institutions.

However, the ECI faces significant challenges that require continuous reform.
Strengthening the independence of the ECI, enhancing the integrity of the electoral
process, and addressing the influence of money and criminality in politics are crucial
for the future of Indian democracy. The ECI's ability to adapt to these challenges and
implement necessary reforms will determine the robustness of India's electoral
system in the years to come.

As India continues to evolve, the ECI must remain vigilant, proactive, and committed
to its mandate of ensuring free, fair, and transparent elections. The future of Indian
democracy depends on the strength and independence of the ECI, making it
imperative to safeguard and enhance this vital institution through thoughtful reforms
and robust legal frameworks.

Electoral Financing in India: A Comprehensive Overview

Electoral financing is a cornerstone of democratic processes, determining how

political campaigns are funded and influencing the fairness, transparency, and
integrity of elections. In India, the role of money in elections has been a contentious
issue, with ongoing debates about the increasing influence of financial resources on
the electoral process.

Context of Electoral Financing in India

Electoral financing in India has evolved over time, reflecting the country’s
socio-political landscape and the growing costs associated with conducting elections
in a diverse and populous nation. The high stakes of elections, coupled with the
extensive need for outreach across vast constituencies, have made financial
resources critical for political campaigns. However, this dependence on money has
raised significant concerns about the fairness and transparency of elections.

Historical Background:

1. Early Regulations: The framework for electoral financing in India was laid
down by the Representation of the People Act, 1951. This act, along with
subsequent amendments, established the initial guidelines for regulating
election expenses, including limits on expenditures and requirements for
candidates to maintain and submit accounts of their election expenses. These
measures were intended to ensure a level playing field among candidates and
curb the influence of money in politics.
2. Commissions and Committees: Several committees and commissions,
including the Santhanam Committee (1964), the Wanchoo Committee (1973),
and the Goswami Committee (1990), have examined the role of money in

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elections. These bodies made various recommendations to address the

influence of money power in the electoral process, such as setting stricter
expenditure limits, enhancing transparency, and exploring state funding of
elections.
3. Judicial Interventions: The judiciary has played a significant role in
interpreting electoral laws, especially concerning the regulation of election
expenses and political party funding. Landmark judgments by the Supreme
Court have sought to clarify the legal framework governing electoral financing
and ensure that election laws are implemented in a manner that upholds the
integrity of the democratic process.

Methods of Electoral Financing

Electoral financing in India can be broadly categorised into three main types: private
funding, state funding, and the now-unconstitutional Electoral Bonds. Each method
has distinct implications for the electoral process.

1. Private Funding:
○ Sources of Private Funding: Private funding primarily comes from
individual donors, corporate entities, and other private organisations.
Donations can be made directly to political parties or to individual
candidates. Corporate donations, in particular, have become a
significant source of funding, especially following amendments to the
Companies Act in 2013, which removed previous restrictions on
corporate contributions to political parties.
○ Challenges with Private Funding: The primary challenge with private
funding is the lack of transparency. Large donations from corporations
or wealthy individuals can lead to a disproportionate influence on
political parties and candidates, raising concerns about quid pro quo
arrangements where policy decisions are influenced by financial
contributions. The opacity surrounding private donations, particularly
those made in cash or through anonymous channels, further
exacerbates these concerns.
2. State Funding:
○ Historical Proposals for State Funding: The idea of state funding of
elections has been discussed in India for several decades. Various
committees, such as the 1999 Committee on State Funding of
Elections, have recommended partial state funding as a way to reduce
the dependence of political parties on private donations. These
recommendations included providing benefits in kind, such as free
airtime on public broadcasters, rather than direct cash payments.
○ International Practices: In many democracies around the world, state
funding is a common practice. Countries like Germany, Japan, and
Sweden provide public subsidies to political parties based on their

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electoral performance. The objective is to reduce the influence of

private money in politics, ensure a level playing field, and promote
transparency in political financing. However, the implementation of
such a model in India has been slow, with only limited steps taken
towards indirect state funding.
○ Current Status in India: Despite discussions and recommendations,
India has not fully implemented state funding of elections. However,
there have been initiatives such as providing free airtime on
state-owned media to recognized political parties during election
periods. These measures are aimed at reducing the costs associated
with campaigning, but they fall short of comprehensive state funding.
3. Electoral Bonds:
○ Introduction and Purpose: Electoral Bonds were introduced by the
Indian government in 2017 as a new instrument for political funding.
These bonds were essentially bearer instruments that could be
purchased by individuals or entities and donated to political parties
anonymously. Available in denominations ranging from ₹1,000 to ₹1
crore, the bonds were designed to be purchased through designated
branches of the State Bank of India (SBI). The stated purpose of
Electoral Bonds was to increase transparency in political funding by
moving donations from cash to a banking channel, while protecting the
identity of the donor.
○ Criticism and Legal Challenges: Despite its intentions, the Electoral
Bonds scheme faced significant criticism from various quarters. The
primary concern was the anonymity of donors, which critics argued
could lead to an increase in undisclosed quid pro quo arrangements
and allow large corporate donors to exert undue influence on political
parties without accountability. The scheme was also criticised for being
more opaque than transparent, as the public and even the Election
Commission did not have access to information about who was
purchasing the bonds and which parties were benefiting from them.
○ Supreme Court Verdict: In a landmark decision, the Supreme Court of
India declared Electoral Bonds unconstitutional, ruling that they
violated the principles of transparency and accountability in electoral
financing. The Court held that the anonymity provided by the scheme
undermined the right of citizens to know the sources of funding for
political parties, which is essential for informed voting and a healthy
democracy. The ruling marked a significant shift in India’s approach to
electoral financing and underscored the need for reforms that prioritise
transparency.

Challenges in Electoral Financing

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Electoral financing in India is fraught with challenges that undermine the integrity and
fairness of the electoral process. These challenges include a lack of transparency,
the disproportionate influence of corporate funding, the inadequacy of existing
expenditure limits, and the persistent issue of political corruption.

1. Lack of Transparency:
○ Opaque Donation Channels: Despite regulations aimed at ensuring
transparency, a significant portion of political donations in India remains
opaque. The Electoral Bonds scheme, in particular, was criticised for its
lack of transparency, as it allowed donors to remain anonymous,
making it difficult to trace the sources of large donations and assess
their impact on political decisions.
○ Underreporting of Expenses: Political parties and candidates often
underreport their election expenses, exploiting loopholes in the
regulatory framework. The lack of stringent auditing and enforcement
mechanisms means that the actual amount of money spent on
elections is often much higher than what is officially reported.
2. Influence of Corporate Funding:
○ Corporate Donations: Corporate funding has become increasingly
significant in Indian elections, especially after the removal of caps on
corporate donations. The amendments to the Companies Act in 2013
allowed companies to contribute unlimited amounts to political parties,
raising concerns about the potential for corporate interests to dominate
the political landscape.
○ Lack of Accountability: The absence of transparency in corporate
donations further exacerbates the issue, as it is difficult to determine
how these contributions influence policy decisions. The potential for
conflicts of interest is high, with corporations likely to expect favourable
treatment in return for their financial support.
3. Expenditure Ceiling and Enforcement:
○ Ineffective Limits on Expenditure: Although there are legal limits on
the amount of money that candidates can spend during elections,
these limits are often circumvented. There is no corresponding ceiling
on the spending by political parties, which can spend unlimited
amounts to support their candidates. This creates an imbalance in the
electoral process, favouring wealthier candidates and parties.
○ Weak Enforcement: The enforcement of expenditure limits is weak,
with many candidates and parties underreporting their expenses or
using indirect channels to spend beyond the prescribed limits. The
Election Commission of India (ECI) lacks the resources and authority to
effectively audit and monitor election expenses, further weakening the
effectiveness of these regulations.
4. Political Corruption:

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○ Link Between Money and Corruption: The close link between

electoral financing and political corruption is well-documented. Political
parties and candidates often rely on large donations from business
interests, leading to a situation where policy decisions are influenced
by the need to repay financial backers. This undermines the
democratic process and erodes public trust in the political system.
○ Unaccounted Money: The flow of unaccounted money, or "black
money," into the electoral process is a persistent problem. Despite
efforts to curb this through regulations and oversight, the lack of
transparency and the presence of informal funding channels continue
to allow for the infiltration of unaccounted money into elections.

Way Forward: Reforms in Electoral Financing

Given the challenges associated with electoral financing in India, there is a pressing
need for comprehensive reforms that enhance transparency, reduce the influence of
money in politics, and ensure a fair and level playing field for all candidates and
parties. The Supreme Court's ruling on Electoral Bonds underscores the urgency of
these reforms.

1. Enhancing Transparency:
○ Mandatory Disclosure of Donors: To improve transparency, it is
essential that political parties be required to disclose the identities of all
donors, including those who contribute through new mechanisms that
might replace Electoral Bonds. This disclosure should be available to
the public, enabling citizens to assess potential conflicts of interest and
the influence of money on political decisions.
○ Public Access to Financial Records: Political parties should be
mandated to make their financial records publicly accessible, including
detailed accounts of their donations and expenditures. Regular audits
by independent agencies should be conducted to ensure compliance
and detect any discrepancies.
2. Revisiting the Concept of Electoral Bonds:
○ Developing a Transparent Alternative: Following the Supreme
Court's ruling, there is a need to explore alternative mechanisms for
political donations that balance the need for transparency with the
protection of donor identities. Any new system should ensure that the
sources of political funding are traceable and that donations do not
unduly influence political decisions.
○ Regulatory Oversight: Strengthening the oversight role of institutions
like the Reserve Bank of India (RBI) and the Election Commission of
India (ECI) is crucial to ensure that any future mechanisms for political
funding are used transparently and ethically.
3. Implementing State Funding of Elections:

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○ Partial State Funding: Implementing partial state funding, as

recommended by various committees, could help reduce the reliance
of political parties on private donations. This could include providing
benefits in kind, such as subsidised media coverage, free printing
services, and public financing for a portion of campaign expenses.
○ Eligibility and Accountability: State funding should be tied to clear
eligibility criteria, such as a party's performance in previous elections.
However, care must be taken to ensure that these criteria do not
discriminate against new or smaller parties. Additionally, strict
accountability measures should be in place to ensure that state funds
are used effectively and ethically.
4. Strengthening Regulation and Enforcement:
○ Empowering the Election Commission: The Election Commission
should be given greater authority to monitor and regulate political
funding. This includes the power to audit party accounts, impose
penalties for non-compliance, and take action against candidates and
parties that violate spending limits.
○ Revising and Enforcing Expenditure Limits: The expenditure limits
for candidates should be revisited to reflect the current costs of
campaigning. At the same time, limits should be introduced on party
spending to ensure a level playing field. Effective enforcement
mechanisms, including real-time monitoring of campaign expenditures,
are essential to make these limits meaningful.
5. Promoting Public Awareness and Voter Education:
○ Voter Awareness Campaigns: Increasing voter awareness about the
sources of political funding and the implications of money power in
elections is crucial. Educated voters are more likely to hold political
parties accountable for their financial practices, which can lead to
greater transparency and integrity in the electoral process.
○ Encouraging Small Donations: Campaigns should be launched to
encourage individuals and small donors to contribute to political
parties, reducing the dependence on large corporate donations and
fostering a culture of clean and transparent funding.

Conclusion

Electoral financing is a critical aspect of India's democratic process, with significant

implications for the fairness and integrity of elections. The introduction of Electoral
Bonds, although well-intentioned, failed to address the underlying issues of
transparency and accountability in political funding. The recent Supreme Court ruling
declaring Electoral Bonds unconstitutional is a significant step towards ensuring that
electoral financing in India aligns with democratic principles.

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Moving forward, comprehensive reforms are needed to address the challenges

associated with electoral financing. These reforms should focus on enhancing
transparency, revisiting and possibly replacing the Electoral Bonds scheme with a
more transparent alternative, implementing partial state funding, and strengthening
the regulatory framework. By addressing these challenges, India can work towards a
more transparent, fair, and democratic electoral process that truly reflects the will of
the people.

Electoral Financing and Electoral Laws: A Comprehensive Overview

Electoral laws in India have been shaped by a combination of constitutional

provisions, statutory laws, and judicial interpretations aimed at ensuring the conduct
of free and fair elections.

Constitutional and Legal Framework

1. Representation of the People Act, 1951 (RPA):

● The RPA is the primary legislation governing elections in India, detailing the
qualifications and disqualifications for membership in Parliament and State
Legislatures, and outlining the procedures for conducting elections. It also
defines what constitutes corrupt practices and provides the legal basis for
challenging election results.
● Section 8: This section deals with the disqualification of candidates and
sitting members of Parliament and State Legislatures on conviction for certain
offences. The provision was significantly interpreted in the Lily Thomas vs.
Union of India (2013) case, where the Supreme Court ruled that any Member
of Parliament or State Legislature convicted of a crime and sentenced to a
minimum of two years in prison would be disqualified from their position with
immediate effect. This ruling struck down the provision that allowed convicted
lawmakers to continue in office while their appeals were pending.
● Section 9: This section disqualifies a person from being chosen as or for
being a member of either House of Parliament or the Legislative Assembly or
Legislative Council of a State if found guilty of certain offences, such as
corruption or disloyalty to the state.
● Section 10: This section provides for disqualification for failure to lodge an
account of election expenses. If a candidate fails to submit an account of
election expenses within the time and manner prescribed by the Election
Commission, they may be disqualified from being a member of Parliament or
a State Legislature.
● Section 11: Section 11 of the RPA empowers the Election Commission to
remove or reduce the period of disqualification for a person who has been
disqualified under Section 8, 9, or 10 of the Act.
● Section 33A: This section requires every candidate standing for election to
provide information about any previous convictions, pending criminal cases,

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and their financial assets. This provision was bolstered by the Supreme
Court's ruling in the Union of India vs. Association for Democratic Reforms
(2002) case, which made it mandatory for candidates to disclose their criminal
antecedents, assets, and liabilities in their nomination papers. This landmark
decision aimed to increase transparency and allow voters to make informed
choices.
● Section 36: This section empowers the Returning Officer to scrutinise
nomination papers and reject any that are not compliant with the Act’s
requirements. The Supreme Court has upheld the authority of Returning
Officers in several cases, emphasising the importance of fair scrutiny to
ensure that only eligible candidates contest elections.
● Section 58A: This section provides for the adjournment of polls or
countermanding of elections on the grounds of booth capturing. It grants the
Election Commission the authority to declare a poll void if there is sufficient
evidence of booth capturing, ensuring that elections are conducted fairly and
without coercion.
● Section 77: This section limits the election expenditure of candidates and
requires them to maintain an account of all expenses incurred. The Supreme
Court has, on multiple occasions, highlighted the importance of this provision
in ensuring a level playing field in elections. However, the insertion of
Explanation 1 in Sub-Section (1) of Section 77 has allowed certain expenses
incurred by political parties or third parties to be excluded from the candidate's
election expenses, raising concerns about the potential for unaccounted
money to influence election outcomes.
● Section 79(d): This section defines the term "candidate" and clarifies that the
period for election expenses starts from the date of nomination. The case of
Kanwar Lal Gupta vs. Amar Nath Chawla (1975) is significant in this context,
where the Supreme Court ruled that expenses incurred by political parties for
the benefit of a candidate must be included in the candidate's election
expenses. This ruling sought to curb the misuse of party funds to circumvent
expenditure limits.
● Section 98: This section provides for the decisions of election petitions. The
law mandates that the High Court's decision on an election petition is final
unless an appeal is made to the Supreme Court.
● Section 123: This section details what constitutes corrupt practices during
elections. These include:
○ Bribery (Section 123(1)): Offering gifts, promises, or gratifications to
influence voters is considered bribery. In Dev Raj vs. Bhagwan Das
(1971), the Supreme Court emphasised that even indirect promises
that could influence voters could be considered bribery.
○ Undue Influence (Section 123(2)): Any form of coercion or
psychological pressure to manipulate voters’ free will falls under undue
influence. The Supreme Court, in various judgments, has interpreted

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undue influence broadly to include not only physical coercion but also
subtle forms of psychological manipulation.
○ Appeal on Grounds of Religion, Caste, Community, or Language
(Section 123(3)): Making appeals to voters on these grounds is a
corrupt practice. The case of Pratap Singh vs. Jagdev Singh (1967)
established that such appeals violate the secular nature of elections in
India.
○ Promoting Enmity (Section 123(3A)): Acts that promote feelings of
enmity or hatred between different classes of citizens on the grounds of
religion, race, caste, or language are prohibited. The Ziyauddin
Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra (1975) case
underscored that any act promoting enmity is a serious violation of
electoral laws, irrespective of the motive behind it.
○ Booth Capturing (Section 123(8)): Seizing a polling booth by force or
unlawful means to influence election results is a corrupt practice. The
Supreme Court has consistently ruled that such acts of intimidation
undermine the electoral process and are grounds for invalidating the
election.
● Section 126: This section prohibits election campaign activities in the final 48
hours before polling begins. This "silent period" is intended to allow voters to
reflect on their choices without being influenced by last-minute campaigning.
● Section 128: This section mandates the maintenance of secrecy of voting,
and any violation of this secrecy is punishable by law.
● Section 158: This section deals with the conditions under which a deposit
made by a candidate at the time of nomination is forfeited. The deposit is
forfeited if the candidate fails to secure a certain minimum percentage of
votes.
● Section 171 of BNS: This section, read with the RPA, criminalises bribery in
elections. The provision is invoked in cases where candidates or their agents
attempt to buy votes through gifts, money, or other inducements.

Judicial Interpretations and Case Laws

Over the years, several landmark judgments have shaped the interpretation and
implementation of the RPA:

1. Indira Nehru Gandhi vs. Raj Narain (1975):

● This case involved the challenge to Prime Minister Indira Gandhi's election on
grounds of corrupt practices. The Allahabad High Court found her guilty of
election malpractices under the RPA, leading to her disqualification. Although
this decision led to the controversial 39th Amendment, which placed the
election of the Prime Minister beyond judicial review, the Supreme Court later
ruled that this amendment violated the basic structure of the Constitution and

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was therefore invalid. The case underscored the judiciary's role in

safeguarding electoral integrity and maintaining checks on executive power.

2. Union of India vs. Association for Democratic Reforms (2002):

● In this landmark case, the Supreme Court made it mandatory for candidates
to disclose their criminal antecedents, assets, and liabilities in their nomination
papers. The ruling emphasised the right of voters to have complete
information about the candidates before making an informed choice. This
judgement was instrumental in promoting transparency and accountability in
the electoral process.

3. Kanwar Lal Gupta vs. Amar Nath Chawla (1975):

● This case dealt with the issue of election expenses. The Supreme Court ruled
that expenses incurred by political parties for the benefit of a candidate must
be included in the candidate's election expenses, thereby closing a loophole
that allowed candidates to circumvent expenditure limits. The ruling reinforced
the importance of maintaining a level playing field in elections and curbing the
influence of money.

4. Lily Thomas vs. Union of India (2013):

● The Supreme Court in this case struck down Section 8(4) of the RPA, which
allowed convicted legislators to continue in office while their appeals were
pending. The Court ruled that any Member of Parliament or State Legislature
convicted of a crime and sentenced to a minimum of two years in prison
would be disqualified from their position with immediate effect. This judgement
strengthened the integrity of the electoral process by ensuring that individuals
with criminal convictions could not continue to hold public office.

Challenges and Way Forward

Despite a robust legal framework, several challenges continue to undermine the

integrity of electoral financing and the electoral process in India:

Challenges:

● Transparency in Electoral Financing: While laws exist to regulate election

expenses and political donations, the actual implementation of these laws
remains a challenge. The complexity of financial transactions and the
influence of unaccounted money continue to pose significant risks to the
fairness of elections.
● Enforcement of Electoral Laws: The enforcement of laws related to election
expenses, corrupt practices, and disqualifications is often inconsistent. The
Election Commission of India (ECI) faces limitations in its ability to effectively

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monitor and sanction violations, leading to concerns about the efficacy of

existing regulations.
● Judicial Delays: Election petitions and cases related to electoral offences
often face delays in the judiciary, which can undermine the timely resolution of
disputes and the enforcement of legal provisions.

Way Forward:

● Strengthening Enforcement Mechanisms: There is a need to empower the

ECI with greater authority to audit election expenses, investigate violations,
and impose penalties. The establishment of a dedicated body or tribunal for
handling election-related disputes could also help expedite the resolution of
cases.
● Enhancing Transparency in Political Financing: Reforms should focus on
increasing the transparency of political donations and expenditures. This
could include mandatory public disclosure of donations and stricter
regulations on the use of party funds for election campaigns.
● Judicial Reforms: To address delays in the adjudication of election petitions,
judicial reforms are necessary. Fast-tracking election-related cases and
ensuring that judgments are delivered within a stipulated time frame could
help maintain the integrity of the electoral process.

Conclusion

The legal framework governing electoral financing and elections in India, particularly
the provisions of the Representation of the People Act, is comprehensive but faces
significant challenges in implementation. Landmark judgments by the Supreme Court
have played a crucial role in interpreting and enforcing these laws, but ongoing
reforms are necessary to address the evolving challenges of electoral integrity.
Strengthening enforcement mechanisms, enhancing transparency, and ensuring
timely judicial intervention are key to preserving the democratic process and
ensuring that elections in India remain free, fair, and reflective of the will of the
people.

Electoral Reforms Matrix : [Law Commission, NCRWC, ADR Recommendation]

Issues and Reforms in Electoral Practices and Processes

1. Money Power in Elections

○ Issue: Excessive use of money in elections leads to undue influence
on the electoral process, often benefitting wealthier candidates.
○ Reforms:
■ Implement stricter regulations on election funding and
expenditure.

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■ Introduce state funding for elections to minimise the influence of

private money.
2. Criminalization of Politics
○ Issue: Increasing number of candidates with criminal backgrounds
contesting elections undermines the democratic process.
○ Reforms:
■ Disqualify candidates with serious criminal charges at the stage
of framing charges.
■ Empower the Election Commission to de-register political parties
associated with criminal activities.
3. Inaccurate Electoral Rolls
○ Issue: Errors and inaccuracies in the electoral rolls lead to
disenfranchisement and manipulation.
○ Reforms:
■ Regular updating and verification of electoral rolls.
■ Create a common electoral roll for all types of elections to avoid
discrepancies.
4. Booth Capturing and Rigging
○ Issue: Physical intimidation and manipulation of votes at polling
stations compromise the integrity of elections.
○ Reforms:
■ Deploy central forces during elections to prevent booth
capturing.
■ Widespread use of Electronic Voting Machines (EVMs) to
reduce rigging and manipulation.
5. Use of Muscle Power and Intimidation
○ Issue: Voters are often coerced or intimidated by candidates or their
supporters, undermining free and fair elections.
○ Reforms:
■ Strict enforcement of law and order during the election period.
■ Use of surveillance and monitoring tools to prevent voter
intimidation.
6. Delayed and Ineffective Judicial Process for Election Petitions
○ Issue: Slow judicial processes in resolving election disputes lead to
prolonged uncertainties.
○ Reforms:
■ Fast-track election-related cases by establishing special election
tribunals.
■ Ensure timely disposal of election petitions to maintain the
integrity of the electoral process.
7. Political Corruption
○ Issue: Electoral corruption erodes public trust and leads to governance
challenges.
○ Reforms:

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■ Implement stricter penalties for electoral malpractices.

■ Mandatory auditing and public disclosure of political party
accounts.
8. Communal and Caste-Based Mobilization
○ Issue: Political campaigns often exploit religious and caste identities,
leading to social polarisation.
○ Reforms:
■ Ban the use of religion and caste as tools in political campaigns.
■ Disqualify candidates or parties that engage in communal or
caste-based rhetoric.
9. Proliferation of Non-Serious Candidates
○ Issue: A large number of non-serious candidates clutter the ballot,
confusing voters and diluting genuine choices.
○ Reforms:
■ Introduce stricter criteria for party registration and candidacy.
■ De-register political parties that fail to contest elections regularly.
10. High Cost of Elections
○ Issue: The escalating cost of running elections creates barriers for
candidates without substantial financial backing.
○ Reforms:
■ Cap election expenses to ensure a level playing field.
■ Encourage cost-effective campaign methods, such as digital
campaigns.
11. Electoral Instability and Hung Legislatures
○ Issue: Frequent occurrences of hung legislatures lead to political
instability and governance challenges.
○ Reforms:
■ Consider alternative electoral systems like proportional
representation to reduce the chances of hung legislatures.
12. Representation Issues in Delimitation
○ Issue: Inequitable representation due to outdated or biassed
delimitation practices affects the fairness of elections.
○ Reforms:
■ Conduct fair and frequent delimitation exercises to ensure equal
representation.
■ Address disparities in constituency sizes to provide balanced
representation.
13. Decay in Political Morality
○ Issue: The declining ethical standards in politics contribute to public
cynicism and disengagement.
○ Reforms:
■ Promote transparency and accountability in political processes.
■ Encourage ethical behaviour through public awareness
campaigns and stricter laws

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Theme 14 : L14.2 : Good Governance : Sectoral & Regulatory Governance

1. Neoliberalism: Regulatory bodies in India emerged during the 1990s, driven

by the agendas of privatization and liberalization. However, regulation is not

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merely a flipside of neoliberalism but a necessary condition for the functioning

of the market, ensuring stability, predictability, and competition.
2. Trust: Regulation is also linked to trust. As trust in traditional institutions
declines, regulation becomes a tool to ensure accountability. The rise of
regulatory capitalism reflects a broader scope where regulation extends
beyond government-business relations to include various social and economic
arenas.
3. Market Failure: Regulation addresses market failures, such as monopolies
and anti-competitive practices, to protect consumer interests and promote
public welfare. In India, regulation also serves to correct market distortions
and ensure fair access to essential goods and services.
4. Public Interest: Regulation aims to enhance welfare by ensuring fair access,
non-discrimination, and other public interest matters. However, public interest
regulation can be manipulated by vested interests, leading to suboptimal
outcomes.
5. Regulatory Capture: Regulatory capture occurs when regulatory agencies
serve the interests of specific groups rather than the public. This can lead to
biased regulations and undermine the effectiveness of the regulatory process.

Theories of Regulation

1. Public Interest Theories: These theories argue that regulation is necessary

to maximise public interest, particularly in cases where market forces fail to
ensure societal well-being.
2. Private Interest Theories: In contrast, private interest theories suggest that
regulation often serves the interests of individuals or organised groups rather
than the public. This perspective emphasises the influence of political
economy factors on regulation.
3. Institutionalist Theories: These theories focus on the internal dynamics of
regulation. Concepts like "regulatory space," "responsive regulation," and the
"stakeholder model" highlight the interactions between regulators,
stakeholders, and the broader regulatory environment.

Evolution of Regulation in India

Regulatory institutions in India emerged after the economic reforms of 1991. Initially,
the state had significant control over the economy, with the private sector
constrained by licences, quotas, and tariffs. However, the post-1991 era saw the rise
of independent regulatory authorities across various sectors, such as telecom,
electricity, and petroleum. These regulatory bodies have been crucial in ensuring
efficiency, consumer protection, and market competitiveness.

Regulation in India can be broadly classified into three main categories:

1. Economic Regulation:

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○ Objective: Economic regulation is primarily aimed at preventing or

addressing market failures. It seeks to ensure that market operations
are efficient and fair, preventing monopolistic practices and fostering
competition.
○ Examples:
■ The Electricity Act, 2003, which empowers State regulators to fix
tariffs for power consumption, ensuring that suppliers do not
exploit their monopolistic positions.
■ The Foreign Trade (Development and Regulation) Act, 1992,
which facilitates imports and augments exports, thereby
regulating foreign trade activities.
2. Regulation in the Public Interest:
○ Objective: This type of regulation is focused on protecting public
welfare, particularly in areas where the private sector may fail to meet
necessary standards or engage in activities of significant public
concern. It ensures that essential services are provided equitably and
safely.
○ Examples:
■ Health and safety regulations that require firms to protect
employees and the public from harm.
■ Environmental protection laws that safeguard natural resources
and public health.
3. Environmental Regulation:
○ Objective: Environmental regulation seeks to protect the environment
from degradation and ensure sustainable development. It addresses
issues such as pollution, resource depletion, and conservation,
recognizing the economic and social impacts of environmental harm.
○ Examples:
■ The Environment (Protection) Act, 1986, which provides a
framework for environmental management and safeguards
against pollution.
■ The Wildlife Protection Act, 1972, aimed at preserving wildlife
and biodiversity.

Regulations & Regulators:

1. Telecom Regulatory Authority of India Act, 1997

2. Electricity Act, 2003
3. Securities and Exchange Board of India Act, 1992
4. Petroleum and Natural Gas Regulatory Board Act, 2006
5. Competition Act, 2002
6. Environment (Protection) Act, 1986
7. Insurance Regulatory and Development Authority Act, 1999
8. Food Safety and Standards Act, 2006

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9. Banking Regulation Act, 1949

10. Cable Television Networks (Regulation) Act, 1995
11. Foreign Trade (Development and Regulation) Act, 1992

Independent Regulatory Authorities in India

Issues in Regulation in India

1. Independence: Regulatory bodies in India often lack independence,

particularly in terms of budgetary allocations and recruitment of staff. Political
interference also undermines the independence of regulators, leading to
complex situations and overburdening of the regulatory system.
2. Accountability: Regulatory accountability in India is weak, with limited
scrutiny from the Parliament and inadequate legal mechanisms for addressing
grievances against regulatory decisions. Ensuring accountability is crucial for
regulatory legitimacy.
3. Transparency: Transparency is essential for effective regulation. In India,
transparency varies across sectors, with some regulations mandating it while
others lack specific provisions. The Right to Information (RTI) Act has
empowered citizens to seek information, but more robust transparency
measures are needed.

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4. Absence of a Uniform Regulatory Framework: India lacks a single

regulatory framework, leading to an uneven regulatory environment. The
sectoral approach to regulation has resulted in delays and inconsistencies
across sectors, making the regulatory process inefficient and costly.
5. Regulation and Social Objectives: While regulation is often justified on
public interest grounds, it can also be manipulated to benefit specific groups.
There is a need for a regulatory framework that balances economic and social
objectives, ensuring that social policies are not sidelined in the pursuit of
market efficiency.
6. Appellate Tribunals: Establishing appellate tribunals for regulatory decisions
could enhance transparency, accountability, and access to justice. These
tribunals should be headed by individuals with judicial backgrounds and
include subject-matter specialists.
7. Functions of the Regulator: Regulators should ensure that their decisions
align with the state's objectives while also considering the impact on
stakeholders. They should focus on international standards, consumer
protection, and sectoral expansion.
8. Multi-Sectoral Regulators: India should consider adopting multi-sectoral
regulators to avoid the proliferation of regulatory commissions and promote
consistency across sectors. States could benefit from a single regulatory
commission for all infrastructure sectors, enhancing productivity and
cost-effectiveness.

Conclusion: Policy Making and Regulation in India

Regulation in India is still in its early stages and has not yet captured the public's
attention for rigorous debate. The roles of regulators and policymakers often overlap,
but clear distinctions must be made to avoid conflicts. While there is skepticism
about regulatory institutions, decades of state control have also failed to inspire
confidence. The choice between public ownership and independent regulation
involves selecting between imperfect options, but with the right procedural
safeguards and mandates, regulators could potentially serve as a space for social
policy development.

In summary, India's regulatory framework needs significant improvements to achieve

the desired balance between economic growth, social objectives, and public welfare.
Addressing the issues of independence, accountability, transparency, and uniformity
will be critical in enhancing the effectiveness of regulation in India.

Regulating the Regulators in India

Introduction

The global trend towards establishing independent regulatory agencies (IRAs)

gained momentum in India following economic liberalisation in the 1990s. These

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agencies were introduced to ensure a level playing field for public and private
operators in sectors such as electricity, telecommunications, and insurance. While
independent regulation aims to provide unbiased governance, it also raises concerns
regarding accountability, as these bodies operate independently of direct
government control.

Independent Regulators in India

The concept of independent regulators is relatively recent in India, influenced by

models from the United States and Europe. Independent regulators are defined as
bodies with their own powers and responsibilities under public law, separate from
ministries, and not managed by elected officials. India established several such
regulators through statutes in various sectors to facilitate the transition to a
liberalised economy. These regulators are designed to function without direct
government intervention, allowing them to make decisions that may be difficult for
politically influenced entities.

Advantages of Independent Regulators

1. Neutral Governance: Regulators are expected to provide a level playing

field, free from the pressures of interest groups.
2. Expertise: They can develop specialised knowledge and processes to
address the complexities of their respective sectors.
3. Decisive Action: Independent regulators are better positioned to make tough
decisions necessary for market stability and fairness.

Challenges and Accountability of Regulators

Despite their advantages, regulators must remain accountable for their actions. The
challenge lies in balancing their independence with the need for oversight to ensure
they serve the public interest effectively. Regulatory capture, where regulators serve
the interests of the industry they oversee rather than the public, remains a significant
concern.

Parliamentary Oversight

Parliamentary oversight is crucial for ensuring that regulators remain accountable. In

India, this oversight is exercised through various mechanisms:

1. Question Hour: Members of Parliament (MPs) can question ministers about

the functioning of regulators. However, since regulators are independent,
there is often a gap in accountability, as ministers respond on behalf of
regulators.
2. Discussions in Parliament: Parliament can debate the role of regulators
under specific rules of procedure, though this tool is rarely used for direct
scrutiny of regulators.

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3. Parliamentary Committees: Department-related standing committees and

finance committees review the working of regulators. However, regular
reporting by regulators to these committees is not mandated, leading to
sporadic oversight.

Key Issues in Parliamentary Oversight

1. Lack of Regular Reporting: Regulators are not required to submit regular

reports to parliamentary committees, leading to gaps in accountability.
2. Inadequate Scrutiny: Parliamentary committees may lack the resources and
expertise to effectively scrutinise complex regulatory actions.
3. Appointment Process: The appointment of regulators in India is controlled
by the executive, without parliamentary ratification, reducing their
accountability.
4. Financial Independence: Many regulators are financially self-sufficient,
which further reduces their scrutiny by Parliament.

Recommendations for Strengthening Oversight

1. Regular Reporting: Regulators should submit annual reports to Parliament,

detailing their progress in achieving objectives. These reports should be made
publicly accessible.
2. Parliamentary Review of Rules and Decisions: Parliamentary committees
should have the power to review the rules, regulations, and decisions made
by regulators.
3. Sector-Specific Committees: Establishing sector-specific parliamentary
committees could enhance the scrutiny of regulators' actions.
4. Judicial Review: While parliamentary scrutiny is important, judicial review is
also necessary to ensure regulators' decisions align with legal standards.

Regulation of Regulators

Several government bodies, including the Planning Commission and the Second
Administrative Reforms Commission (ARC), have recommended ways to improve
the accountability of regulators:

1. Direct Accountability: Regulators should be directly accountable to

Parliament, with mechanisms in place for regular reporting and scrutiny.
2. Evaluation Mechanisms: A body of experts should periodically evaluate the
performance of regulators, providing guidelines for accountability.
3. Coordination Among Regulators: A dedicated joint parliamentary
committee could oversee coordination among different regulators to prevent
conflicting decisions.

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Conclusion

The creation of independent regulators in India has been a mixed success. While
they have achieved some positive outcomes, their role has not been critically
examined, and the existing mechanisms for legislative oversight need significant
strengthening. Effective oversight is essential because regulators combine the
functions of the executive, legislature, and judiciary. To improve regulatory
accountability, Parliament must play a more active role in scrutinising these bodies,
ensuring they serve the public interest while maintaining their independence.

Autonomous Regulation and Regulatory Risk: Railways and Coal

Introduction

In recent years, there has been significant discussion regarding the need for
independent sectoral regulators in India's railways and coal sectors. With the
opening of these sectors to private participation, the demand for unbiased regulation
has grown. This note delves into the arguments surrounding the need for
independent regulation, the experience of other sectors with such regulators, and the
potential regulatory approaches for the railways and coal sectors.

The Clamour for Independent Regulators

As India opens its passenger train and coal mining segments to private players,
there has been increasing advocacy for the establishment of independent regulators
for these sectors. The rationale behind this push is the concern that private
investment may not be forthcoming without the assurance of unbiased regulation,
given that these sectors have historically been public sector monopolies.

1. Railways: The Indian Railways has initiated private participation in passenger

train services, planning to introduce 151 private trains over 109 routes, with
an investment of approximately ₹30,000 crore. The concession period is set
at 35 years, with revenue sharing as the bidding parameter.
2. Coal: Similarly, the coal sector has opened up to commercial mining, with 38
coal blocks offered for private mining. The Ministry of Coal is also considering
the establishment of a coal regulator.

Need for Regulating Infrastructure Services

The rationale for regulating infrastructure services, including railways and coal,
stems from the need to attract private investment while ensuring consumer
protection. Infrastructure investments are typically characterised by high asset
specificity and sunk costs, making them vulnerable to regulatory risks. Tariff risk is
particularly significant, as it involves the possibility that regulators might not allow
cost-recovering user charges, deterring potential investors.

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Experience with Independent Sectoral Regulators

India has experience with several independent sectoral regulators across various
infrastructure sectors, including:

1. Telecom Regulatory Authority of India (TRAI)

2. Central Electricity Regulatory Commission (CERC)
3. Tariff Authority for Major Ports (TAMP)
4. Airports Economic Regulatory Authority (AERA)

However, the track record of these regulators has been mixed:

● TRAI: Accusations of regulatory capture by private sector players, with

decisions such as reducing interconnection usage charges (IUC) and
restricting market segmentation strategies of Vodafone and Airtel.
● CERC: Regulatory flip-flops, particularly in tariff fixation for major projects like
the Tata Mundra power project.
● TAMP: The case of Nhava Sheva International Container Terminal, where
revenue share was included in cost considerations, rendering competitive
bidding meaningless.
● AERA: Approved development fees for Mumbai and Delhi airports
post-contract, leading to passenger costs subsidising capital expenses, as
highlighted by the Comptroller and Auditor General (CAG) in 2012.

The Prime Minister, in his Independence Day speech, acknowledged the challenges
posed by independent regulatory authorities and emphasised the need for legislation
to monitor their work and ensure accountability without compromising their
independence.

Regulation by Contract: An Alternative Approach

In the absence of an independent sectoral regulator, some sectors, such as roads,

have effectively implemented "regulation by contract." This approach involves
defining the rules of engagement in concession agreements, including tariff
determination and performance standards. It provides greater predictability for
private investors and reduces regulatory risks. The road sector in India, with the
highest number of public-private partnership (PPP) projects globally, has
successfully navigated these challenges without an independent regulator.

Issues with Independent Regulation in India

Several factors undermine the effectiveness of independent sectoral regulators in

India:

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1. Regulatory Capacity: The quality of regulatory decisions often suffers due to

the appointment of retired bureaucrats as regulators, leading to compromised
regulatory outcomes.
2. Parallel Regulatory Structures: In some sectors, such as electricity, the
government is contemplating creating new regulatory bodies that may overlap
with existing regulators, further complicating the regulatory landscape.
3. Lack of Independence: Many regulators lack true decision-making,
institutional, management, and financial independence, which limits their
effectiveness in addressing regulatory risks.

Recommended Regulatory Approaches for Railways and Coal

Given the mixed experiences with independent sectoral regulators and the specific
challenges in the railways and coal sectors, the following approaches are
recommended:

1. Regulation by Contract: For both railways and coal, regulation by contract is

a viable alternative. Concession agreements can be structured to include
provisions for tariff determination and performance standards, offering greater
predictability and clarity for private investors.
2. Multi-Sectoral Regulation: Alternatively, existing regulators like AERA for
railways and CERC for coal could expand their mandates to include these
sectors. Multi-sectoral regulators can build capacity, prevent regulatory
capture, and ensure consistency across different infrastructure sectors.

The railways already had cabinet approvals for the establishment of a Rail
Development Authority and a Rail Tariff Authority, but these have not been
implemented. With the entry of private players in passenger train services, the
Ministry of Railways could practise regulation by contract or delegate regulatory
functions to AERA.

Similarly, in the coal sector, the Ministry of Coal could either practise regulation by
contract or consider making CERC a multi-sectoral regulator, overseeing both
electricity and coal sectors.

Conclusion

While the clamour for independent sectoral regulators in railways and coal is
understandable, the mixed experience with existing regulators suggests that
alternative regulatory approaches, such as regulation by contract or multi-sectoral
regulation, may be more effective. These approaches can mitigate regulatory risks,
provide greater predictability for investors, and ensure consumer protection, all while
avoiding the pitfalls of regulatory capture and overlapping regulatory structures.

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Corporate Governance in India

1. Evolution of Corporate Governance in India

Corporate governance in India has evolved significantly over the years, influenced by
both domestic needs and international trends. The roots of corporate governance in
India can be traced back to the early 1990s, following economic liberalisation.
However, the formalisation of corporate governance practices began with the
introduction of various committees and reforms post the Harshad Mehta scam in
1992.

Pre-Independence Era:

● Corporate governance in India was initially influenced by colonial laws, with

the Companies Act of 1866 being one of the earliest legal frameworks. This
period saw the misuse of resources and lack of accountability among
managing agents.

Post-Independence Developments:

● Post-independence, the focus was on industrialization, with regulations being

introduced to control fair pricing and industrial development. The Companies
Act, 1956 was a significant milestone, which introduced legal frameworks for
the corporate sector.

1990s Onward - Key Milestones:

● CII Initiative (1996): The Confederation of Indian Industry (CII) took a

significant step by introducing a code of corporate governance in 1998,
focusing on transparency and protecting investor interests.
● Kumar Mangalam Birla Committee (1999): This SEBI-formed committee laid
down detailed guidelines for corporate governance, including the introduction
of Clause 49 in the listing agreement, which mandated various disclosures
and board practices.
● Naresh Chandra Committee (2002): Focused on the auditor-company
relationship, it recommended stringent norms for financial disclosures and
auditor independence.
● Narayana Murthy Committee (2003): This committee further strengthened
Clause 49, emphasising the role of independent directors and the need for
transparent financial disclosures.
● Companies Act, 2013: This act introduced several changes, including the
mandatory appointment of independent directors, the formation of audit
committees, and the requirement for companies to spend on Corporate Social
Responsibility (CSR).

2. Key Features of Corporate Governance in India

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● Board Composition and Independence: Indian laws mandate that boards of

directors include a certain number of independent directors to ensure
impartiality in decision-making.
● Audit Committees: Companies are required to have an audit committee with
independent members who oversee financial reporting and disclosures.
● Corporate Social Responsibility (CSR): The Companies Act, 2013 made it
mandatory for certain companies to spend a percentage of their profits on
CSR activities.
● Disclosure Requirements: Companies must provide detailed financial
disclosures, including related party transactions, to enhance transparency

3. Challenges in Corporate Governance

● Implementation Gaps: Despite having robust regulations, the implementation

of corporate governance practices often falls short due to inadequate
enforcement and lack of accountability.
● Corporate Frauds: Scandals such as Satyam, Kingfisher, and ICICI Bank
highlight the challenges in ensuring ethical conduct and transparency within
corporations.
● Concentrated Ownership: A significant challenge in India is the high
concentration of ownership in companies, often leading to conflicts of interest
and poor governance practices.
● Cultural Issues: The mindset and organisational culture in many Indian
companies often prioritise profits over ethical governance, leading to
governance failures.

4. Landmark Judgments and Cases

● Satyam Scam (2009): The Satyam scandal was a major turning point in
corporate governance in India. The manipulation of accounts and the
subsequent fallout led to a re-evaluation of governance practices, resulting in
stricter regulations.
● ICICI Bank Case: Highlighted issues of board governance and the need for
independent investigations in cases of alleged nepotism and governance
lapses.
● Kingfisher Airlines and United Spirits Case: This case demonstrated the risks
of internal corporate funding malpractices and the failure of regulatory
oversight.

5. Corporate Social Responsibility (CSR)

● The Companies Act, 2013, introduced a mandatory CSR requirement for

companies meeting certain criteria, requiring them to spend at least 2% of
their average net profits on CSR activities.

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● CSR activities include initiatives in education, poverty alleviation, gender

equality, and environmental sustainability. Companies are also required to
disclose their CSR activities in their annual reports.

6. International Examples of Corporate Governance

● United Kingdom: The UK’s corporate governance framework, particularly the

Cadbury Report of 1992, significantly influenced global corporate governance
practices. The report emphasised the role of independent directors and the
need for audit committees

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● This section mandates companies with a net worth of ₹500 crore or more,
turnover of ₹1,000 crore or more, or a net profit of ₹5 crore or more in the
preceding financial year to spend at least 2% of their average net profits from
the past three years on CSR activities.
● Companies are required to form a CSR committee to oversee the
implementation of their CSR policies and ensure compliance with the law.

Amendments and Clarifications:

● The CSR rules have been amended multiple times, reflecting the evolving
nature of CSR regulations. Initially, the law operated on a "comply or explain"
basis, where companies were required to explain any failure to spend the
mandated amount on CSR.
● The Companies (Amendment) Act, 2019 introduced penalties for
non-compliance, including fines and imprisonment for defaulting officers,
although these provisions have been modified over time to reflect a more
balanced approach.

CSR Activities Under Schedule VII:

● The activities eligible for CSR spending are listed under Schedule VII of the
Companies Act. These include eradicating hunger, promoting education,
gender equality, healthcare, and environmental sustainability, among others.
● Over time, the list has been expanded to include contributions to government
funds like the Swachh Bharat Kosh, Clean Ganga Fund, and PM CARES
Fund.

3. Challenges and Criticisms of CSR Regulations

Overregulation:

● The frequent amendments and notifications issued by the Ministry of

Corporate Affairs (MCA) have created a complex web of regulations, leading
to concerns about overregulation. The excessive micromanagement of CSR
activities by the government has been criticised for limiting the flexibility of
companies to innovate in their CSR initiatives.

Penalties and Compliance Issues:

● The introduction of penalties for non-compliance with CSR obligations has

been a point of contention. Initially, the law did not specify penalties, relying
instead on public disclosure and the "comply or explain" approach. However,
subsequent amendments introduced fines and imprisonment, which were later
moderated to civil penalties.

Geographical Concentration of CSR Spending:

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● The requirement for companies to focus their CSR spending in the local areas
of their operations has led to a concentration of CSR activities in certain
industrialised states, leaving many regions underfunded. This has raised
concerns about the equitable distribution of CSR benefits across the country.

Contribution to Government Funds:

● Contributions to government funds like the PM CARES Fund are counted as

CSR activities. However, this has been criticised for turning CSR into
corporate philanthropy rather than integrating societal needs with business
objectives. The ease of making such contributions has led companies to
prefer this option over direct community engagement.

4. Impact of CSR Regulations

Increased CSR Spending:

● Since the introduction of mandatory CSR, there has been a significant

increase in the number of companies engaged in CSR activities and the total
amount spent on CSR. From 2014–15 to 2018–19, the number of companies
reporting CSR activities and the total CSR expenditure have grown
substantially.

Focus Areas and Innovation:

● While the CSR law has directed substantial resources towards social causes,
the rigid framework and frequent changes have stifled innovation. Companies
are often constrained by the specific activities listed in Schedule VII, limiting
their ability to tailor CSR initiatives to their strengths or the needs of the
communities they serve.

Inconsistencies in Tax Treatment:

● The tax treatment of CSR expenditures has been inconsistent, with certain
CSR activities being eligible for tax deductions while others are not. For
example, donations to the PM CARES Fund are fully deductible, whereas
other CSR expenditures are not allowed as business expenses under the
Income Tax Act, leading to confusion and criticism.

5. Recommendations and Way Forward

Simplification of CSR Regulations:

● There is a need to simplify the CSR regulations, allowing companies greater

flexibility in choosing their CSR activities. The law should focus on broad
categories of CSR activities aligned with the Sustainable Development Goals
(SDGs) rather than a prescriptive list of eligible activities.

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Encouraging Innovation:

● The CSR framework should encourage companies to innovate in their CSR

activities, leveraging their core competencies to address social issues. The
current focus on compliance should be balanced with an emphasis on the
impact and sustainability of CSR initiatives.

Improved Geographical Distribution:

● To ensure a more equitable distribution of CSR benefits, the government

should encourage companies to undertake CSR initiatives in underdeveloped
regions, potentially through incentives or guidelines that promote spending
outside of industrialised areas.

Clarification of Tax Policies:

● The government should provide clear and consistent guidelines on the tax
treatment of CSR expenditures, ensuring that companies are not discouraged
from engaging in impactful CSR activities due to unfavourable tax
implications.

6. Conclusion

Corporate Social Responsibility in India has undergone significant changes since its
introduction, with a legal framework that mandates CSR spending for eligible
companies. While the regulations have succeeded in channelling substantial
resources into social causes, the complexity and rigidity of the framework have also
posed challenges. Moving forward, there is a need for a more streamlined and
flexible approach to CSR that encourages innovation, equitable distribution of
benefits, and alignment with broader developmental goals.

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Theme 14 : L14.3 Good Governance : Transparency & Accountability

Syllabus :

Important Aspects of Governance, Transparency and Accountability,

E-governance- applications, models, successes, limitations, and potential;
Citizens Charters, Transparency & Accountability and institutional and other
measures.

Constitutional, Statutory, Regulatory and various Quasi-judicial Bodies.

PYQs :

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Corruption in India

Meaning, Definition, and Concept of Corruption

Corruption is a global phenomenon that has persisted throughout history,

manifesting in various forms across different societies. In its broadest sense,
corruption involves the misuse of public power for private gain. It is an abuse of
entrusted authority, typically by public officials, for personal enrichment or to benefit
others unfairly. The World Bank defines corruption as the "abuse of public office for
private gain," a definition that has gained universal acceptance. Corruption is not
confined to monetary transactions but includes a range of unethical activities, such
as favouritism, nepotism, and the manipulation of public resources.

As per Transparency International’s Report of 2023, India ranks 93/180 along with
a composite score of 39/100.

Historical Evolution of Corruption

Corruption in India has deep historical roots, tracing back to ancient times. The Vedic
texts, such as the Rigveda, warned against the consequences of corruption.
Kautilya’s Arthashastra, written around the 4th century BCE, addressed the issue of
corruption among government officials and suggested stringent measures to prevent
it. The problem of corruption was also prevalent in ancient Greece, where it became
a common feature of political life.

During the British colonial period, corruption became more systemic, particularly
within the East India Company. Although efforts were made to curb corruption, such
as by increasing the salaries of officials to reduce their dependence on bribes, these
measures were largely ineffective. Post-independence, corruption continued to
plague India, with the establishment of a legal framework to address it, including the
Indian Penal Code and the Prevention of Corruption Act, 1947.

Causes of Corruption

Corruption in India is driven by a complex interplay of factors, which can be broadly

categorised as administrative, social, psychological, economic, political, religious,
and legal causes.

1. Administrative Causes: Weak administrative structures, lack of transparency,

and inadequate control mechanisms foster an environment conducive to
corruption. When public officials have wide discretion without corresponding
accountability, the likelihood of corruption increases.
2. Social Causes: The erosion of ethical values and the public's tolerance of
corrupt practices contribute to the persistence of corruption. The lack of
education and awareness among citizens also plays a role, as does the

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influence of media and civil society in either perpetuating or combating corrupt

behaviour.
3. Psychological Causes: Corruption is often driven by personal greed and the
desire for power. The psychological disposition of individuals in positions of
authority, combined with societal pressures, can lead to corrupt practices.
4. Economic Causes: Low salaries of public officials are frequently cited as a
primary cause of corruption. When public servants struggle to meet their basic
needs, they may resort to accepting bribes or engaging in other forms of
corrupt behaviour .
5. Political Causes: Political corruption, often referred to as "kleptocracy,"
involves the abuse of power by political leaders for personal gain. This form of
corruption is pervasive in India, where the nexus between politicians and
bureaucrats often leads to large-scale scandals.
6. Religious Causes: In India, religious institutions have sometimes been
implicated in corrupt activities, such as money laundering and the misuse of
charitable donations. These practices are often justified or overlooked due to
the high regard in which religious figures and institutions are held.
7. Legal Causes: The legal system in India is often inadequate in addressing
corruption, with loopholes in the law and a lack of effective enforcement
mechanisms. The slow judicial process further exacerbates the problem,
allowing corrupt individuals to escape punishment.

Types of Corruption

Corruption manifests in various forms, each with its own characteristics and
implications:

1. Petty Corruption: Often referred to as "chai-pani" or "grease money," petty

corruption involves small bribes paid to lower-level officials to expedite
services or avoid minor penalties.
2. Grand Corruption: This form of corruption occurs at the highest levels of
government, involving large sums of money and significant abuses of power.
Examples include major scandals like the 2G spectrum case and the
Commonwealth Games scam.
3. Systemic Corruption: Also known as endemic corruption, this type occurs
when corruption is an integral part of the economic, social, and political
systems. It is characterised by the regular and widespread practice of corrupt
activities.
4. Professional and Amateur Corruption: Professional corruption refers to
predictable, routine corrupt practices, while amateur corruption is less
predictable and may not always result in the expected outcomes, even when
bribes are paid.
5. Black Money and Parallel Economy: Black money refers to unaccounted
wealth, often generated through corrupt practices. It forms a significant part of

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the parallel economy and is often hidden in offshore accounts, exacerbating

economic inequality and hindering development.

Consequences of Corruption

Corruption has far-reaching consequences that affect all aspects of society. These
include:

1. Economic Consequences: Corruption leads to the misallocation of resources,

distorts markets, and hinders economic growth. It discourages investment,
increases the cost of doing business, and creates uncertainty in the market.
2. Social Consequences: Corruption exacerbates social inequalities by
disproportionately affecting the poor. It undermines public trust in institutions,
weakens social cohesion, and can lead to social unrest.
3. Political Consequences: Corruption erodes the legitimacy of political
institutions and undermines democracy. It can lead to political instability and
the rise of populist movements that exploit public discontent with corrupt
elites.
4. Human Rights Consequences: Corruption directly impacts human rights by
denying individuals access to essential services such as healthcare,
education, and justice. It perpetuates poverty and inequality, violating the
principles of fairness and equality.
5. Environmental Consequences: Corruption in regulatory agencies can lead to
environmental degradation, as businesses may bribe officials to bypass
environmental laws and regulations, resulting in unsustainable practices that
harm ecosystems and public health.

International Examples

Corruption is not unique to India; it is a global issue. For instance, in Italy, the Mafia's
influence in politics and business has been a long-standing issue, leading to
systemic corruption that permeates various levels of government. In Brazil, the
"Operation Car Wash" scandal revealed widespread corruption involving top
politicians and business leaders, resulting in significant political and economic
upheaval. The Watergate scandal in the United States is another example of how
corruption at the highest levels can lead to a crisis of confidence in government
institutions.

Conclusion

Corruption is a multifaceted problem that requires a comprehensive approach to

address. While India has made strides in establishing a legal framework to combat
corruption, the challenge remains significant due to the deep-rooted nature of the
problem. Effective measures to curb corruption must include strengthening the legal

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system, enhancing transparency, and fostering a culture of accountability.

International cooperation and the sharing of best practices are also crucial in the
global fight against corruption.

Laws, Institutions, and Policies Concerning Anti-Corruption in India

1. Legal Framework for Anti-Corruption in India

India's legal framework for combating corruption is comprehensive, reflecting the

nation’s ongoing battle against corruption, which has been a significant challenge in
its public administration and governance.

1.1 Prevention of Corruption Act, 1947

The Prevention of Corruption Act, 1947, was one of the earliest post-independence
legislative measures aimed at curbing corruption in India. It was enacted due to the
rising concern over widespread corruption, especially during and after World War II.
The Act primarily targeted the bribery and corruption of public officials. It introduced
the concept of "criminal misconduct," making it easier to prosecute corrupt public
servants by shifting the burden of proof in certain cases to the accused. This Act
served as the foundation for India's anti-corruption laws but had limitations in scope
and effectiveness, leading to the need for more robust legislation.

1.2 Prevention of Corruption Act, 1988

The Prevention of Corruption Act, 1988, marked a significant advancement in India's

legislative framework to combat corruption. This Act consolidated the provisions of
the Prevention of Corruption Act, 1947, and the Criminal Law Amendment Act, 1952.
It was designed to make anti-corruption laws more effective by expanding their
scope and enhancing the penalties for corrupt activities. Key features of the Act
include:

● Broad Definition of Public Servant: The Act broadened the definition of

"public servant" to include a wide range of individuals engaged in public
duties, regardless of whether they were directly appointed by the government.
This expansion was crucial to encompass the various roles and
responsibilities that could be exploited for corrupt practices.
● Introduction of Public Duty: The Act introduced the concept of "public duty,"
which referred to any duty that a public servant is required to perform in their
official capacity. This concept was critical in prosecuting corruption cases
where the public servant’s actions affected public interest.
● Special Judges for Corruption Cases: The Act provided for the
appointment of Special Judges to ensure that corruption cases were tried
swiftly and effectively. These judges were granted powers to conduct
day-to-day trials, minimising delays in legal proceedings.

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● Enhanced Penalties: The Act significantly increased the penalties for

corruption-related offences, including imprisonment and fines, reflecting the
seriousness of corruption as a crime against the state and society.
● Burden of Proof: One of the Act's most notable provisions was the reversal
of the burden of proof in certain circumstances, where the accused public
servant was required to prove their innocence once their possession of
disproportionate assets or acceptance of gratification was established.

1.3 The Lokpal and Lokayuktas Act, 2013

The Lokpal and Lokayuktas Act, 2013, was a landmark in India’s anti-corruption
legislation, establishing the Lokpal at the central level and Lokayuktas at the state
level. The Lokpal is an independent anti-corruption ombudsman authority with the
power to investigate complaints against high-ranking public officials, including the
Prime Minister, Ministers, and Members of Parliament. Key features of the Act
include:

● Jurisdiction: The Lokpal has jurisdiction over all public servants, including
the Prime Minister, although the Act imposes some limitations on
investigations concerning the Prime Minister. The Lokayuktas have similar
powers at the state level.
● Independence: The Lokpal and Lokayuktas are independent bodies with no
direct control by the government, ensuring their decisions are free from
political influence.
● Investigation and Prosecution: The Lokpal has the authority to initiate
investigations and prosecute cases of corruption. It can order inquiries,
recommend actions, and refer matters to courts.
● Whistleblower Protection: The Act also includes provisions to protect
whistleblowers, encouraging the reporting of corruption by safeguarding
individuals who expose corrupt practices from retaliation.

1.4 Whistleblowers Protection Act, 2014

The Whistleblowers Protection Act, 2014, provides a legal framework to protect

individuals who expose corruption in the public sector. The Act aims to encourage
transparency and accountability by ensuring that whistleblowers can report
corruption without fear of reprisal. Key provisions include:

● Protection from Retaliation: The Act provides safeguards against

victimisation of the whistleblower by their superiors or other public officials.
● Confidentiality: The identity of the whistleblower is kept confidential to
prevent any form of retribution or harassment.
● Complaints to Competent Authorities: Whistleblowers can submit their
complaints to designated authorities, who are obligated to investigate the
allegations.

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1.5 Prevention of Money Laundering Act, 2002

The Prevention of Money Laundering Act, 2002 (PMLA), is a critical component of

India’s anti-corruption framework, targeting the financial aspects of corruption. The
Act aims to prevent money laundering and to provide for the confiscation of property
derived from or involved in money laundering. Key elements of the PMLA include:

● Definition of Money Laundering: The Act defines money laundering as any

process or activity connected with the proceeds of crime, including acquiring,
possessing, or using the proceeds of crime.
● Enforcement Directorate: The Directorate of Enforcement (ED) is the
designated agency responsible for enforcing the provisions of the PMLA. The
ED investigates cases of money laundering, attaches properties involved, and
prosecutes offenders.
● Financial Intelligence Unit (FIU-IND): The FIU-IND is responsible for
receiving, analysing, and disseminating information related to suspicious
financial transactions. It plays a vital role in preventing money laundering by
identifying and reporting potentially illegal activities.

1.6 Right to Information Act, 2005

The Right to Information (RTI) Act, 2005, is a powerful tool for promoting
transparency and accountability in public administration. By granting citizens the
right to access information held by public authorities, the RTI Act helps in uncovering
and preventing corruption. Key features include:

● Access to Information: The Act empowers citizens to request information

from any public authority, which is required to respond within a specified
timeframe.
● Obligation of Public Authorities: Public authorities are obligated to maintain
records and proactively disclose certain categories of information to the
public, reducing the opportunities for corruption.
● Appeal and Complaint Mechanisms: The Act provides for an appeals
process if information is not provided, and citizens can file complaints with the
Central or State Information Commissions.

1.7 Benami Transactions (Prohibition) Amendment Act, 2016

The Benami Transactions (Prohibition) Amendment Act, 2016, strengthens the legal
framework to combat benami transactions, which are often used to conceal the
corrupt acquisition of property. The Act empowers authorities to confiscate benami
properties and imposes stringent penalties on those found guilty of engaging in such
transactions.

● Confiscation of Property: The Act allows for the provisional attachment and
eventual confiscation of benami properties by the government.

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● Adjudicating Authority and Appellate Tribunal: The Act establishes an

Adjudicating Authority and an Appellate Tribunal to deal with cases related to
benami transactions, ensuring a structured and fair process.

2. Institutions Combating Corruption

India has established a robust institutional framework to implement its anti-corruption

laws and policies. These institutions are pivotal in the fight against corruption,
providing oversight, investigation, and prosecution of corrupt practices.

2.1 Central Vigilance Commission (CVC)

The Central Vigilance Commission (CVC) was established in 1964 as an

autonomous body responsible for monitoring and ensuring the effective
implementation of anti-corruption measures in central government organisations.
The CVC’s primary functions include:

● Supervision and Monitoring: The CVC oversees vigilance activities in

central government departments and public sector enterprises, ensuring that
anti-corruption measures are effectively implemented.
● Advisory Role: The CVC advises the government on anti-corruption policies
and the formulation of vigilance practices.
● Investigative Authority: The CVC has the authority to investigate complaints
of corruption and to refer cases to the Central Bureau of Investigation (CBI) or
other agencies for further action.

2.2 Central Bureau of Investigation (CBI)

The Central Bureau of Investigation (CBI) is India’s premier investigative agency,

responsible for investigating high-profile corruption cases, economic offences, and
other serious crimes. The CBI’s Anti-Corruption Division specifically focuses on
cases involving corruption among public servants and in central government
institutions. Key functions include:

● Investigation of Complex Cases: The CBI investigates cases of large-scale

corruption, often involving senior public officials and significant financial
implications.
● Prosecution: The CBI prosecutes cases in courts, working closely with
Special Judges to ensure that corruption cases are tried expeditiously.
● International Cooperation: The CBI collaborates with international law
enforcement agencies to investigate cross-border corruption and money
laundering.

2.3 Enforcement Directorate (ED)

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The Enforcement Directorate (ED) is responsible for enforcing the Prevention of

Money Laundering Act (PMLA) and the Foreign Exchange Management Act (FEMA).
The ED plays a critical role in combating corruption by targeting the financial
networks that facilitate corrupt practices. Key functions include:

● Investigation of Money Laundering: The ED investigates money laundering

activities linked to corruption, confiscating assets and prosecuting offenders.
● Financial Intelligence: The ED works closely with the Financial Intelligence
Unit (FIU-IND) to monitor and analyse suspicious financial transactions that
may be linked to corruption.

2.4 Lokpal and Lokayuktas

The Lokpal and Lokayuktas are ombudsman institutions established under the
Lokpal and Lokayuktas Act, 2013. These bodies are empowered to investigate and
prosecute corruption cases involving public officials, including those at the highest
levels of government. Key features include:

● Independence: The Lokpal and Lokayuktas operate independently of the

executive branch, ensuring that their investigations are free from political
influence.
● Wide Jurisdiction: The Lokpal’s jurisdiction covers all public servants,
including the Prime Minister, Ministers, and Members of Parliament.
Lokayuktas have similar powers at the state level.
● Whistleblower Protection: The institutions provide protection for
whistleblowers, encouraging individuals to report corruption without fear of
retaliation.

2.5 State Anti-Corruption Bureaus (ACBs)

State Anti-Corruption Bureaus (ACBs) operate at the state level and are responsible
for investigating and prosecuting corruption cases within their respective
jurisdictions. These bureaus play a crucial role in addressing corruption in state
government institutions and public services. Key functions include:

● Investigation and Prosecution: ACBs investigate complaints of corruption

against state government officials and prosecute cases in state courts.
● Preventive Vigilance: ACBs conduct preventive vigilance activities, such as
public awareness campaigns and training programs, to reduce opportunities
for corruption.

2.6 Comptroller and Auditor General (CAG)

The Comptroller and Auditor General (CAG) of India is an independent authority

responsible for auditing the accounts of the central and state governments, including
public sector enterprises. The CAG plays a vital role in ensuring financial

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accountability and transparency, thereby contributing to the fight against corruption.

Key functions include:

● Auditing Government Accounts: The CAG audits the financial statements

of government departments and agencies, identifying discrepancies and
instances of financial mismanagement.
● Reporting to Parliament: The CAG submits audit reports to the Parliament
or state legislatures, highlighting issues of concern and recommending
corrective actions.

2.7 Financial Intelligence Unit – India (FIU-IND)

The Financial Intelligence Unit – India (FIU-IND) is the central agency responsible for
receiving, processing, analysing, and disseminating information related to suspicious
financial transactions. It plays a critical role in detecting and preventing money
laundering, which is often linked to corruption. Key functions include:

● Monitoring Financial Transactions: FIU-IND monitors and analyzes

financial transactions that are potentially linked to money laundering and
corruption.
● Collaboration with Law Enforcement: FIU-IND collaborates with law
enforcement agencies, including the ED and CBI, to investigate and
prosecute cases involving suspicious financial activities.

3. Policies and Initiatives

India has implemented various policies and initiatives to support its legal and
institutional framework in combating corruption. These initiatives focus on promoting
transparency, accountability, and good governance.

3.1 National Anti-Corruption Strategy

The National Anti-Corruption Strategy, formulated by the Central Vigilance

Commission (CVC), outlines a comprehensive approach to prevent and combat
corruption across all levels of government. The strategy emphasises:

● Promoting Transparency: Encouraging open and transparent

decision-making processes to reduce the scope for corruption.
● Enhancing Accountability: Strengthening accountability mechanisms for
public servants, including regular audits and performance evaluations.
● Public Participation: Involving citizens in governance through mechanisms
such as public hearings, social audits, and the Right to Information (RTI) Act.
● E-Governance: Promoting the use of technology to streamline government
processes and reduce human intervention, thereby minimising opportunities
for corruption.

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3.2 E-Governance Initiatives

The Indian government has launched several e-governance initiatives to enhance

transparency and reduce corruption in public administration. These initiatives
include:

● Government e-Marketplace (GeM): An online platform for government

procurement that ensures transparency and fairness in the procurement
process by reducing human intervention and enabling competition.
● Direct Benefit Transfer (DBT): A program that transfers subsidies and
benefits directly to beneficiaries’ bank accounts, reducing leakages and
ensuring that funds reach the intended recipients without corruption.
● Digital Land Records: The digitization of land records and property
registration processes reduces the chances of corruption in land transactions
by making records easily accessible and transparent.

3.3 Public Procurement Policy

The Public Procurement Policy aims to ensure transparency, fairness, and

competition in government procurement processes. By adopting standardised
procedures and leveraging technology, the policy seeks to minimise opportunities for
corruption in public contracts. Key features include:

● Transparent Bidding Processes: The policy mandates open and

transparent bidding processes for government contracts, reducing the
chances of collusion and favouritism.
● Use of Technology: The adoption of e-procurement platforms like GeM
ensures that procurement processes are transparent and less susceptible to
manipulation.
● Accountability Mechanisms: The policy includes provisions for audit and
oversight, ensuring that procurement processes are conducted in a fair and
accountable manner.

3.4 Whistleblower Incentive Programs

To encourage the reporting of corruption, some government departments have

implemented whistleblower incentive programs. These programs offer financial
rewards and protection to individuals who expose corrupt practices, thereby
enhancing the effectiveness of whistleblowing as a tool against corruption.

3.5 International Cooperation

India actively engages with international organisations and other countries to

strengthen its anti-corruption efforts. Key aspects of international cooperation
include:

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● United Nations Convention against Corruption (UNCAC): India is a

signatory to UNCAC, which provides a global framework for combating
corruption. UNCAC emphasises international cooperation in the investigation
and prosecution of corruption cases.
● Collaboration with Global Financial Institutions: India works with
institutions like the International Monetary Fund (IMF) and the World Bank to
adopt global best practices in anti-corruption policies and to track and
repatriate illicit funds.
● Bilateral Agreements: India has signed bilateral agreements with several
countries to facilitate the exchange of information and cooperation in the
investigation and prosecution of corruption-related offences.

4. International Scenarios

Several countries around the world have implemented robust legal frameworks and
institutions to combat corruption, offering valuable lessons and best practices for
India.

4.1 Brazil's Anti-Corruption Framework

Brazil’s anti-corruption efforts, particularly the "Operation Car Wash" investigation,

have been widely recognized for their effectiveness. This large-scale investigation
uncovered widespread corruption involving political leaders, business executives,
and state-owned enterprises. Key elements of Brazil's approach include:

● Judicial Independence: Brazil’s judiciary played a crucial role in investigating

and prosecuting high-profile individuals, including former President Luiz Inácio
Lula da Silva, ensuring that even the most powerful individuals are held
accountable.
● Collaboration between Institutions: The success of Operation Car Wash
was due to the collaboration between various institutions, including the
judiciary, law enforcement agencies, and financial regulators.

4.2 The United States Foreign Corrupt Practices Act (FCPA)

The Foreign Corrupt Practices Act (FCPA) of the United States is one of the most
stringent anti-corruption laws globally. It prohibits American companies and
individuals from bribing foreign officials to obtain or retain business, making it a
critical tool in combating international corruption. Key features include:

● Global Jurisdiction: The FCPA applies to all U.S. citizens and entities,
regardless of where the corrupt act occurs, ensuring that American
businesses adhere to high ethical standards abroad.
● Enforcement by Multiple Agencies: The FCPA is enforced by both the
Department of Justice (DOJ) and the Securities and Exchange Commission
(SEC), ensuring comprehensive oversight and prosecution of violations.

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4.3 The United Kingdom Bribery Act, 2010

The United Kingdom's Bribery Act, 2010, is another comprehensive anti-corruption

law that criminalises the offering, receiving, and facilitating of bribes, both
domestically and internationally. It is one of the most far-reaching anti-corruption
laws in the world. Key features include:

● Broad Scope: The Bribery Act covers all forms of bribery, including bribery of
foreign officials, and applies to UK citizens, residents, and companies
operating globally.
● Corporate Liability: The Act includes provisions for holding companies liable
if they fail to prevent bribery by their employees or associates, encouraging
businesses to implement robust anti-corruption measures.

Conclusion

India's anti-corruption framework is extensive, supported by a combination of legal

instruments, dedicated institutions, and proactive policies. The legal framework,
including the Prevention of Corruption Act, the Lokpal and Lokayuktas Act, and the
Whistleblowers Protection Act, provides a strong foundation for combating
corruption. Institutions such as the CVC, CBI, ED, and Lokpal play crucial roles in
implementing these laws and ensuring accountability. Additionally, policies and
initiatives like e-governance, public procurement reform, and international
cooperation further strengthen India's anti-corruption efforts.

Despite these advancements, challenges remain in effectively implementing these

measures and ensuring that corruption is eradicated across all levels of governance.
Continuous efforts to strengthen the legal system, enhance institutional capacities,
and promote transparency and accountability are essential. Learning from
international best practices and fostering international cooperation will also play a
crucial role in India’s ongoing battle against corruption.

The Right to Information (RTI) Act, 2005 : Comprehensive Analysis

The Right to Information (RTI) Act, 2005, stands as a landmark legislation in India’s
democratic evolution. It represents a shift from a culture of secrecy to one of
transparency, empowering citizens to hold the government accountable. This
comprehensive overview examines the historical context, key features, impact,
challenges, and recommendations related to the RTI Act.

Historical Context and Judicial Influence

The RTI Act did not emerge in a vacuum; it was the result of a long struggle by civil
society and the judiciary to institutionalise transparency in governance. The historical

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backdrop of the RTI Act is closely tied to judicial pronouncements that recognized
the right to information as intrinsic to the fundamental right to freedom of speech and
expression under Article 19(1)(a) of the Indian Constitution.

1. Early Judicial Recognition: The concept of the right to information began to

take shape through several landmark judgments. In State of UP v. Raj
Narain (1975), the Supreme Court ruled that citizens have the right to know
the details of government functioning. The judgement emphasised that in a
democracy, where citizens are the ultimate stakeholders, transparency is
essential.
2. S.P. Gupta v. Union of India (1982): In this case, the Supreme Court further
reinforced the right to information by stating that transparency is vital for
democracy and that citizens must have access to information regarding public
affairs. The Court recognized that the right to information is an integral part of
the right to freedom of speech and expression.
3. Development of FOI Act, 2002: The first legislative attempt to codify the right
to information was the Freedom of Information (FOI) Act, 2002. However, this
Act was criticised for its limited scope and the numerous exemptions that
hindered transparency. The inadequacies of the FOI Act led to its repeal and
the introduction of the more robust Right to Information Act, 2005.
4. Civil Society and Grassroots Movements: The push for a comprehensive
RTI law was significantly influenced by grassroots movements. Organisations
like the Mazdoor Kisan Shakti Sangathan (MKSS) in Rajasthan played a
pivotal role in bringing the issue of transparency and accountability to the
forefront. The MKSSS's use of public hearings, or Jan Sunwais, to expose
corruption in public works projects galvanised public support for a stronger
RTI framework.

Enactment of the RTI Act, 2005

The RTI Act, 2005, was enacted by the Indian Parliament on June 15, 2005, and
came into full force on October 12, 2005. The Act was designed to address the
shortcomings of the FOI Act and to create a more effective mechanism for ensuring
transparency in public administration.

Key Provisions of the RTI Act

The RTI Act is comprehensive in its scope and aims to operationalize the right to
information in a practical and accessible manner. Some of the key provisions
include:

1. Definition of Information: The Act defines "information" in broad terms,

encompassing any material in any form, including records, documents,
memos, emails, opinions, advice, press releases, circulars, orders, logbooks,
contracts, reports, papers, samples, models, data material held in electronic

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form, and information relating to any private body that can be accessed by a
public authority under any other law.
2. Right to Access Information: Every citizen has the right to request
information from a public authority, which is required to respond within 30
days. In cases where the information pertains to the life or liberty of a person,
the response time is reduced to 48 hours.
3. Exemptions: The Act lists specific exemptions where information may not be
disclosed. These include information affecting the sovereignty and integrity of
India, security, strategic, scientific, or economic interests, relations with
foreign states, and information forbidden to be published by a court of law or
tribunal. The Act also exempts information that would endanger the life or
physical safety of any person or identify the source of information given in
confidence for law enforcement or security purposes.
4. Proactive Disclosure: Section 4 of the Act mandates that public authorities
proactively publish certain categories of information to reduce the need for
citizens to file formal RTI applications. This includes details of their
organisation, functions, and duties, the powers and duties of its officers and
employees, the rules, regulations, instructions, manuals, and records held by
it, and the names and designations of Public Information Officers (PIOs).
5. Public Information Officers (PIOs): The Act requires every public authority
to designate one or more officers as PIOs. These officers are responsible for
receiving and processing RTI requests and providing the requested
information within the stipulated time frame.
6. Appeals Process: If an applicant is not satisfied with the response of the PIO
or if the request is denied, the applicant can file an appeal to a senior officer
within the same public authority. If still dissatisfied, the applicant can appeal to
the Central Information Commission (CIC) or the State Information
Commission (SIC), depending on the jurisdiction.
7. Penalties for Non-Compliance: The Act imposes penalties on PIOs for
delays or failure to provide information without reasonable cause. The penalty
is ₹250 per day of delay, subject to a maximum of ₹25,000. The Act also
empowers Information Commissions to recommend disciplinary action against
errant officers.
8. Information Commissions: The Act establishes the Central Information
Commission (CIC) at the national level and State Information Commissions
(SICs) at the state level to adjudicate appeals and complaints related to the
denial of information. These bodies function as quasi-judicial authorities with
the power to impose penalties and order the release of information.

Impact of the RTI Act

The RTI Act has had a profound impact on governance in India, promoting
transparency, accountability, and citizen participation in various ways:

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1. Combating Corruption: The RTI Act has been instrumental in exposing

corruption across various levels of government. Citizens have used the Act to
uncover malpractices in public works, misappropriation of funds, and
irregularities in the implementation of government schemes. For example, in
Rajasthan, the MKSS utilised RTI to expose corruption in the Public
Distribution System (PDS) and other welfare programs, leading to significant
reforms.
2. Empowering Citizens: The RTI Act has empowered ordinary citizens,
especially those from marginalised communities, to demand accountability
from public officials. In many instances, RTI has been used to ensure the
delivery of public services, such as ensuring the proper functioning of schools,
hospitals, and other essential services in rural and urban areas alike.
3. Promoting Participatory Democracy: The Act has facilitated greater citizen
participation in governance by providing a mechanism for people to engage
with the government. This has led to a more informed and active citizenry,
capable of influencing policy decisions and holding the government
accountable.
4. Improving Public Administration: By mandating the disclosure of
information, the RTI Act has led to improvements in the way public authorities
function. The need to maintain records and respond to RTI requests has
encouraged public bodies to improve their record-keeping practices and
become more efficient and responsive.
5. Judicial Support: The judiciary has played a critical role in upholding the
provisions of the RTI Act and expanding its scope. The Supreme Court of
India has repeatedly affirmed that the right to information is fundamental to
the democratic process, as seen in cases like Central Board of Secondary
Education (CBSE) v. Aditya Bandopadhyay (2011), where the Court held
that all citizens have the right to inspect their evaluated answer sheets under
the RTI Act.

Challenges in Implementation

Despite its successes, the RTI Act faces several significant challenges that hinder its
full realisation:

1. Safety of RTI Activists: One of the most pressing issues is the safety of RTI
activists who often face threats, harassment, and violence for exposing
corruption and malpractice. The murder of activists such as Shehla Masood,
Satish Shetty, and Amit Jethwa underscores the dangers faced by those who
use the RTI Act to hold powerful interests accountable. The lack of a
dedicated protection mechanism for whistleblowers and RTI activists remains
a critical gap in the law.
2. Delays and Backlogs: The effectiveness of the RTI Act is compromised by
significant delays in the disposal of RTI appeals and complaints. Information

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Commissions across the country are grappling with a growing backlog of

cases, leading to long waits for information. Reports like the Satark Nagrik
Sangathan (SNS) Report Card highlight that some Information Commissions
have a pendency of several years, effectively denying citizens timely access
to information.
3. Inadequate Resources and Staffing: Many Information Commissions
operate with inadequate resources and staffing, which exacerbates delays
and undermines their ability to function effectively. The slow pace of
appointments for Information Commissioners, particularly at the state level,
has further strained the system. Some Commissions are functioning without a
full complement of members, which hinders their ability to address the
backlog of cases.
4. Exemptions and Misuse of Section 8: While the RTI Act includes necessary
exemptions to protect national security and personal privacy, there have been
instances where public authorities have misused these provisions to deny
information. The vague wording of some exemptions under Section 8 of the
Act has led to inconsistent interpretations and misuse by public officials to
withhold information that should otherwise be disclosed.
5. Awareness and Accessibility: Despite the widespread impact of the RTI Act,
there remains a significant lack of awareness about the law, particularly
among marginalised communities and in rural areas. Many citizens are
unaware of their rights under the RTI Act or lack the resources and literacy
required to file RTI applications. The complexity of the application process
and the lack of assistance for illiterate applicants also pose barriers to
accessing information.
6. Amendments to the RTI Act: Recent amendments to the RTI Act, which give
the central government control over the tenure and salaries of Information
Commissioners, have raised concerns about the independence of these
bodies. Critics argue that these changes could weaken the autonomy of
Information Commissions, making them more susceptible to political pressure
and reducing their effectiveness as independent watchdogs.

Case Studies of RTI Successes

1. Mazdoor Kisan Shakti Sangathan (MKSS) in Rajasthan: The MKSS

movement in Rajasthan is one of the earliest and most prominent examples of
how the RTI Act has been used to empower citizens and combat corruption.
By organising public hearings (Jan Sunwais), the MKSS exposed large-scale
corruption in public works programs. Their efforts not only led to the recovery
of misappropriated funds but also set the stage for the national RTI
movement.
2. PDS Reforms in Delhi: In the Sunder Nagri area of Delhi, RTI activists used
the Act to expose corruption in the Public Distribution System (PDS), where
ration shop owners were diverting food meant for the poor to the black

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market. The information obtained through RTI applications revealed the scale
of the fraud, leading to the cancellation of licences and reforms in the PDS
system.
3. National Rural Employment Guarantee Scheme (NREGA) in Bihar: In
Bihar, RTI applications were used to monitor the implementation of NREGA, a
flagship rural employment program. Activists uncovered instances where
wages were not being paid to workers or where fake job cards were being
issued. The information obtained through RTI led to administrative action and
the proper implementation of the scheme, ensuring that beneficiaries received
their due entitlements.
4. Exposing Illegal Mining in Gujarat: RTI activist Amit Jethwa used the Act to
expose illegal mining activities in the Gir forest region of Gujarat, which were
causing significant environmental damage. His efforts led to a crackdown on
illegal mining operations. Unfortunately, his activism also made him a target,
and he was tragically murdered in 2010. His case highlights both the power
and the dangers of using the RTI Act to challenge vested interests.

Recommendations for Strengthening the RTI Act

To address the challenges faced by the RTI Act and to strengthen its
implementation, several recommendations have been proposed by civil society
organisations, activists, and legal experts:

1. Protection for Whistleblowers and RTI Activists: There is an urgent need

to amend the RTI Act to include provisions for the protection of whistleblowers
and RTI activists. The enactment of a comprehensive whistleblower protection
law that provides safeguards against harassment and violence is essential.
Additionally, the Central and State Information Commissions should be
empowered to take immediate action in cases where activists are threatened.
2. Strengthening Information Commissions: The government should ensure
the timely appointment of Information Commissioners and provide adequate
resources to these bodies. To reduce backlogs, Information Commissions
should adopt modern case management systems and streamline their
procedures. The independence of Information Commissions must be
safeguarded by ensuring that their appointments and functioning are free from
political interference.
3. Enhancing Proactive Disclosure: Public authorities should be encouraged
to adopt a more proactive approach to disclosing information. The categories
of information required to be disclosed under Section 4 of the RTI Act should
be expanded, and public authorities should be held accountable for
non-compliance. Regular audits and monitoring by Information Commissions
could help ensure that public authorities meet their disclosure obligations.
4. Simplifying the RTI Process: The process of filing RTI applications should
be made more accessible, particularly for marginalised communities. This

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could include simplifying the application format, providing assistance through

local government offices, and allowing RTI applications to be filed through
multiple channels, including online, by phone, or in person. States like Bihar
have pioneered the use of a phone-in system for filing RTI applications, which
could be replicated across the country.
5. Increasing Awareness and Capacity Building: Comprehensive awareness
campaigns should be conducted to educate citizens about their rights under
the RTI Act. Special efforts should be made to reach rural areas and
marginalised groups. Additionally, training programs should be conducted for
public officials to improve their understanding of the RTI Act and to ensure
better compliance.
6. Revisiting Exemptions and Section 8: The exemptions under Section 8 of
the RTI Act should be reviewed to ensure they are not misused. Clear
guidelines should be established to prevent the arbitrary withholding of
information by public authorities. The government should consider introducing
legislative amendments or issuing guidelines to clarify the scope of
exemptions and ensure consistent interpretation across different public
authorities.

Conclusion

The Right to Information Act, 2005, has been a powerful instrument for promoting
transparency, accountability, and citizen participation in India. It has empowered
millions of citizens to demand their rights, expose corruption, and hold the
government accountable. However, the Act's full potential can only be realised if the
challenges it faces are addressed comprehensively.

Strengthening the RTI regime requires a multi-faceted approach that includes

protecting activists, improving the functioning of Information Commissions,
enhancing proactive disclosure, simplifying the RTI process, and increasing public
awareness. The success of the RTI Act depends not only on the law itself but also
on the commitment of the government, civil society, and citizens to uphold the
principles of transparency and accountability that lie at its core.

As India continues to evolve as a democracy, the RTI Act will remain a crucial tool for
ensuring that governance is conducted in an open, transparent, and accountable
manner. By addressing the challenges and strengthening the Act, India can continue
to build on the progress made over the past decades and ensure that the right to
information remains a pillar of its democratic framework.

Comprehensive Analysis of Lokpal

Introduction

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The Lokpal and Lokayuktas Act, 2013, is a landmark legislation in India aimed at
combating corruption in public offices. The Act established the Lokpal, an
independent and autonomous body to inquire into allegations of corruption against
public functionaries. The term "Lokpal" is derived from Sanskrit, meaning "protector
of the people." The concept is rooted in the idea of an ombudsman, inspired by
similar institutions in Scandinavian countries, which have proven effective in curbing
corruption and ensuring administrative accountability.

Historical Background

The demand for a Lokpal in India dates back to the 1960s when the first
Administrative Reforms Commission recommended the establishment of an
ombudsman to address the growing problem of corruption. Despite several attempts
to introduce the Lokpal Bill in Parliament over the decades, it faced various political
and administrative challenges. It was only in 2013, amidst significant public outcry
and the anti-corruption movement led by Anna Hazare, that the Lokpal and
Lokayuktas Act was finally passed.

Significance of the Lokpal Act

The Lokpal Act is a significant step towards strengthening India's legal framework
against corruption. It provides a mechanism to investigate allegations of corruption
against high-ranking public officials, including the Prime Minister, ministers, and
Members of Parliament. The Act aims to restore public trust in governance by
ensuring that public servants are held accountable for their actions.

The Lokpal is empowered with extensive powers to investigate, prosecute, and

ensure that justice is served in cases of corruption. The Act also marks India's
commitment to international standards, particularly the United Nations Convention
against Corruption, which necessitates the establishment of independent
anti-corruption bodies(.

Composition and Appointment Process

The Lokpal consists of a Chairperson and up to eight members, with 50% of the
members required to be judicial members. Additionally, 50% of the members must
belong to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities,
and women. The appointment of the Lokpal members is done by a selection
committee, which includes the Prime Minister, the Speaker of the Lok Sabha, the
Leader of the Opposition (LoP) in the Lok Sabha, the Chief Justice of India or a
Supreme Court judge nominated by the CJI, and an eminent jurist(MCM 2023
Lokpal).

However, the appointment process has faced criticism for its lack of transparency
and potential for bias. After the 2014 general elections, when no party was
recognized as the LoP due to insufficient strength in the Lok Sabha, the selection

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process became contentious. The government's refusal to amend the Act to include
the leader of the largest opposition party instead of the LoP raised concerns about
the independence and impartiality of the Lokpal.

Mandate and Powers

The Lokpal is mandated to investigate and prosecute cases of corruption involving

public servants across various levels, from the Prime Minister and ministers to
lower-level government employees. However, specific conditions apply to inquiries
against the Prime Minister, particularly in areas such as international relations,
security, and atomic energy, where the Lokpal's jurisdiction is limited(.

The Lokpal has the authority to conduct preliminary inquiries, order full
investigations, and prosecute cases under the Prevention of Corruption Act, 1988. It
also has the power to recommend disciplinary action against public servants found
guilty of corruption.

Challenges and Areas of Concern

1. Delayed Implementation and Operational Challenges: Despite being

passed in 2013, the Lokpal only became operational in 2019 due to delays in
appointing its Chairperson and members. This significant delay undermined
the effectiveness of the institution and raised doubts about the government's
commitment to fighting corruption.
2. Dilution of Powers through Amendments: In 2016, the government
introduced amendments that diluted key provisions of the Lokpal Act,
particularly those related to the disclosure of assets by public servants. The
original Act required public servants, along with their spouses and dependent
children, to declare their assets, which were to be made publicly available.
The amendments allowed the central government to determine the form and
manner of these disclosures, reducing transparency and public accountability.
3. Overburdening of the Lokpal: The Lokpal's jurisdiction is extensive,
covering not only high-ranking officials but also lower-level employees and
functionaries of NGOs receiving significant foreign funding. This broad
mandate risks overburdening the Lokpal with a large number of complaints,
potentially diverting attention from serious cases of high-level corruption.
4. Inconsistent Implementation of Lokayuktas: While the Lokpal functions at
the central level, the state-level Lokayuktas, which are supposed to mirror the
Lokpal’s functions, have been inconsistently implemented across India. Many
states have weak or non-functional Lokayuktas, leading to uneven standards
in tackling corruption. The lack of uniformity in the establishment and
functioning of Lokayuktas undermines the overall effectiveness of the
anti-corruption framework(.

E-Governance in Lokpal for Efficiency and Transparency

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In every facet of its operations, the Lokpal of India has embraced e-governance to
boost outreach, efficiency, and transparency. E-governance is central to the Lokpal's
mission to maintain integrity, streamline administrative processes, and enhance
public accessibility. The following initiatives illustrate the Lokpal’s commitment to
leveraging technology:

1. Electronic Annual Performance Appraisal Report (SPARROW): The

Lokpal has adopted the electronic Annual Performance Appraisal Report
(SPARROW) system, which is an online platform for filing annual performance
appraisal reports of government officers. This system, maintained by the
Central Government, ensures that officers can submit their reports
electronically, thereby reducing delays, eliminating the possibility of
tampering, and promoting transparency in performance evaluations.
2. Electronic Movement of Files (E-Office): The E-Office system has been
fully implemented in the Lokpal’s Secretariat, eliminating the need for physical
movement of files. This system ensures the efficient management of
administrative files, with a Disaster Recovery System in place to safeguard
data in the event of a disaster. During the COVID-19 pandemic lockdown, the
E-Office system enabled staff to work from home without disrupting
operations, highlighting its importance in maintaining continuity and efficiency
in the Lokpal's functioning.
3. Library Management System (E-Granthalaya): The Lokpal office has
integrated the E-Granthalaya Library Management System to manage its
library resources digitally. This system allows for better cataloguing, easy
access to legal and administrative resources, and efficient management of the
library’s assets, ensuring that staff and officers have quick access to
necessary information.
4. Pension Sanction & Payment Tracking System (Bhavishya): The
Bhavishya system is an online platform that tracks the sanctioning and
payment of pensions. This system has been implemented in the Lokpal's
office to ensure that retiring employees receive their pension and other
retirement dues promptly. The Bhavishya system ensures that all
retirement-related payments are processed and the Pension Payment Order
is delivered on the day of retirement itself.
5. Visitors Management System (Swagatam): The Swagatam e-Visitors
Management System has been implemented to efficiently manage visitor
details at the Lokpal's office. This system enhances security, allows for better
management of visitor flow, and ensures that records of visitors are accurately
maintained, contributing to the transparency and security of the institution.
6. Electronic Human Resource Management (E-HRMS): The E-HRMS is a
comprehensive Human Resource Management System implemented in the
Lokpal's Secretariat. It provides a standardised solution for managing
personnel records, ensuring that all service records are maintained

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electronically. This system enhances the management of human resources by

providing accurate, real-time data and facilitating better decision-making.

The Way Forward

For the Lokpal to achieve its full potential, several key reforms are necessary:

1. Ensuring a Balanced and Transparent Selection Process: The

composition of the selection committee must be amended to include the
leader of the largest opposition party in the Lok Sabha, especially when the
LoP is not recognized. Additionally, the selection process should be made
more transparent, with public disclosure of the criteria used, the candidates
considered, and the rationale behind the final appointments.
2. Strengthening Asset Disclosure Provisions: The 2016 amendments that
diluted the asset disclosure requirements must be reversed. The Lokpal
should mandate comprehensive asset disclosures by public servants, their
spouses, and dependent children, with this information made publicly
available to enhance transparency and public scrutiny.
3. Enhancing the Effectiveness of Lokayuktas: The establishment of effective
Lokayuktas across all states is crucial. The Lokpal Act should be amended to
set uniform standards for Lokayuktas, ensuring that they have the necessary
powers and resources to combat corruption at the state level.
4. Leveraging E-Governance for Better Accountability: The integration of
e-governance in the Lokpal’s operations should be expanded. This includes
developing robust digital platforms for complaint filing, case tracking, and
public disclosure. E-governance can significantly enhance the efficiency,
transparency, and public accountability of the Lokpal.
5. Focus on Serious Cases of Corruption: The Lokpal should focus its
resources on serious cases of high-level corruption, rather than being
overwhelmed by complaints involving lower-level officials or entities with
minor infractions. This would require a more selective approach to the types
of cases the Lokpal chooses to investigate.

Conclusion

The Lokpal represents a crucial institution in India’s fight against corruption.

However, its effectiveness has been hampered by delays in implementation, dilution
of its powers, and challenges in the selection process. To ensure that the Lokpal can
function as an independent and empowered body, significant reforms are necessary,
including strengthening e-governance mechanisms, ensuring transparency in the
selection process, and focusing on high-impact corruption cases. By addressing
these challenges, the Lokpal can become a more effective tool in combating
corruption and restoring public trust in governance

Whistleblowers Protection

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Introduction: Understanding Whistleblowing in India

Whistleblowing involves the act of reporting or publicising illicit activities, corruption,

and misconduct, often within organisations, whether public or private.
Whistleblowers, who bring such issues to light, play a critical role in promoting
transparency, accountability, and good governance. However, the act of
whistleblowing is fraught with personal risks, including retaliation, loss of
employment, damaged relationships, and mental health challenges. The
consequences of not reporting wrongdoing can be even more severe, affecting the
integrity of organisations and society at large.

Historical Context and Evolution

The concept of whistleblowing can be traced back to ancient civilizations. In Ancient

Greece, the orator Lycurgus highlighted the importance of individuals stepping
forward to expose wrongdoers, recognizing that neither laws nor judges alone could
achieve justice. Similarly, in Ancient India, Kautilya (Chanakya) discussed the role of
informants in detecting financial wrongdoing and proposed a reward system for
those who exposed corruption. Kautilya's Arthashastra even recommended harsh
penalties for informants who later retracted their allegations, reflecting the
significance attached to the integrity of whistleblowing.

In modern history, the term "whistleblower" was popularised in the 1970s by Ralph
Nader, a US civic activist, who sought to replace the negative connotations
associated with terms like "informers" and "snitches" with a more neutral label.
Despite this change in terminology, whistleblowers continue to face significant
challenges, particularly in the workplace, where they may be ostracised, labelled as
traitors, or subjected to retaliation.

Whistleblowers Protection Act, 2014

The Whistleblowers Protection Act, 2014, was a landmark piece of legislation in

India, aimed at protecting individuals who expose corruption, abuse of power, or
criminal activities within public institutions. The Act provides a mechanism for
receiving and inquiring into public interest disclosures against public servants,
including Ministers, Members of Parliament, lower judiciary, regulatory authorities,
and central and state government employees.

Key Features of the Act:

● Public Interest Disclosure: Any individual can make a public interest

disclosure regarding corruption, misuse of power, or criminal offenses by
public servants. Such disclosures are made before a designated Competent

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Authority, such as the Prime Minister for Union Ministers or the

Speaker/Chairman for Members of Parliament.
● Protection Measures: The Act mandates that the identity of the
whistleblower and the accused public servant must be kept confidential to
protect the whistleblower from retaliation.
● Investigative Process: The Competent Authority is required to conduct a
discreet inquiry into the allegations while ensuring that the whistleblower's
identity remains protected.

The Act was intended to empower whistleblowers to come forward without fear,
thereby enhancing the transparency and accountability of public institutions.

Amendments to the Whistleblowers Protection Act

The Whistleblowers Protection (Amendment) Bill, 2015, introduced significant

changes to the original Act, raising concerns about the weakening of whistleblower
protections. The amendments primarily focused on restricting the types of
information that could be disclosed, ostensibly to protect national security, economic
interests, and other sensitive areas.

Key Amendments:

● Prohibited Disclosures: The amendment prohibits the disclosure of

information in ten specific categories, including:
1. Sovereignty, strategic, scientific, or economic interests of India.
2. Proceedings of the Council of Ministers.
3. Information forbidden by a court or that could result in contempt
of court.
4. Breach of privilege of legislatures.
5. Commercial confidence, trade secrets, or intellectual property (if it
harms a third party).
6. Information received in a fiduciary capacity.
7. Information received from a foreign government.
8. Information that could endanger a person’s safety.
9. Information that could impede an investigation.
10. Personal matters or invasion of privacy.
● Official Secrets Act: The amendment restricts disclosures under the Act if
they are prohibited by the Official Secrets Act, 1923. This represents a
significant shift from the original Act, which allowed disclosures even if they
were prohibited under the OSA, provided they were in the public interest.
● Referral to Government Authority: If a disclosure falls under any of the
prohibited categories, it must be referred to a government-authorised authority
for a final decision. However, the amendment does not specify the
qualifications or the process of appointment for this authority, raising concerns
about its independence and effectiveness.

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The amendments have been criticised for potentially undermining the very purpose
of the Whistleblowers Protection Act by placing excessive restrictions on what can
be disclosed. Critics argue that the prohibited categories are too broad and could be
used to stifle legitimate whistleblowing, particularly in cases involving corruption or
misuse of power.

Challenges Faced by Whistleblowers

Despite the legal framework provided by the Whistleblowers Protection Act,

whistleblowers in India face numerous challenges:

● Retaliation: Whistleblowers often face severe retaliation, including job loss,

harassment, social ostracism, and even physical harm. The fear of such
consequences deters many individuals from coming forward with information
about wrongdoing.
● Legal and Bureaucratic Hurdles: The amendments to the Whistleblowers
Protection Act have introduced legal and bureaucratic hurdles that can make
it difficult for whistleblowers to report wrongdoing. The broad categories of
prohibited disclosures and the involvement of government-authorised
authorities add layers of complexity to the process.
● Cultural Stigma: In India, whistleblowers are often stigmatised and labelled
as "informers" or "snitches," which can lead to social isolation and
professional ostracism. This cultural stigma further discourages individuals
from exposing wrongdoing.
● Lack of Comprehensive Protection: The amendments to the Act have been
criticised for weakening the protection offered to whistleblowers. Unlike the
RTI Act, which includes provisions for public interest exceptions and a
two-stage appeal process, the Whistleblowers Protection Act lacks similar
safeguards.

Corporate Governance and Whistleblowing

The Companies Act, 2013, and regulations by the Securities and Exchange Board of
India (SEBI) have also recognized the importance of whistleblowing in corporate
governance. These laws require companies to establish whistleblowing mechanisms
to detect and prevent corporate fraud and misconduct.

Key Provisions in Corporate Whistleblowing Policies:

● Whistleblower Policy: Section 177(9) of the Companies Act, 2013,

mandates that all public listed companies must establish a vigil mechanism for
employees and senior executives. This includes a whistleblower policy with
clear safeguards against victimisation.

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● Reporting Channels: Companies must provide mechanisms for employees

to report violations, with provisions for maintaining confidentiality and
protecting whistleblowers from retaliation.
● Role of Auditors and Inspectors: The Act also emphasises the role of
auditors and inspectors as external whistleblowers. They are empowered to
report any fraudulent activities directly to the central government or relevant
authorities.
● SEBI Regulations: SEBI has mandated that listed companies must have a
whistleblower mechanism in place under Regulation 22 of the SEBI (Listing
Obligations and Disclosure Requirements) Regulations, 2015. Companies
must disclose the adoption of such policies and report on the number of cases
resolved or pending under the whistleblower mechanism.

International Comparison of Whistleblower Laws

Whistleblower protection laws vary significantly across countries, reflecting different

legal traditions and attitudes towards transparency and accountability.

Examples of International Whistleblower Protections:

● United States: The Whistleblower Protection Act of 1989 protects federal

employees who disclose information about government misconduct. However,
disclosures related to national defence or foreign affairs are exempted unless
specifically authorised by an Executive Order.
● United Kingdom: The Public Interest Disclosure Act, 1998, offers broad
protection to whistleblowers but exempts disclosures that could harm national
security or involve certain intelligence agencies.
● Australia: The Public Interest Disclosure Act, 2013, includes provisions for
protecting whistleblowers while restricting disclosures related to intelligence,
national defence, and foreign relations.
● Canada: The Public Servants Disclosure Protection Act, 2005, provides
whistleblower protections but includes exemptions for certain operational
information, including that related to intelligence and military operations.

These international examples highlight the balance that different countries have
sought to strike between protecting whistleblowers and safeguarding national
interests. India's approach, particularly with the 2015 amendments, reflects a
cautious stance, prioritising national security and confidentiality over broad
whistleblower protections.

Conclusion: The Way Forward for Whistleblower Protection in India

Whistleblowers are essential to maintaining transparency and accountability in both

public and private sectors. However, the current legal framework in India, while a
significant step forward, still leaves much to be desired. The amendments to the

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Whistleblowers Protection Act have introduced restrictions that could potentially

discourage whistleblowing and weaken the fight against corruption.

To foster a culture of integrity and good governance, it is crucial to:

● Strengthen Legal Protections: Amend the Whistleblowers Protection Act to

provide broader protection for whistleblowers, including public interest
exceptions and robust appeal mechanisms.
● Promote Cultural Change: Address the cultural stigma associated with
whistleblowing through awareness campaigns and educational programs that
highlight the importance of transparency and accountability.
● Enhance Corporate Governance: Ensure that corporate whistleblowing
mechanisms are effectively implemented, with clear reporting channels,
strong protections against retaliation, and transparency in how cases are
handled.

India's journey towards protecting whistleblowers is ongoing. While the

Whistleblowers Protection Act, 2014, was a significant milestone, further reforms are
needed to create an environment where individuals can report wrongdoing without
fear, contributing to a more transparent and accountable society.

1. E-Governance

E-Governance refers to the application of Information and Communication

Technology (ICT) by government bodies to enhance the efficiency, effectiveness,
transparency, and accessibility of public services. It aims to transform traditional
governance by digitising government processes, ensuring that services are delivered
to citizens, businesses, and other government agencies in a seamless, efficient, and
transparent manner.

2. Definitions and Perspectives on E-Governance

World Bank Definition:

● E-Governance is defined as the use of information technologies (such as

Wide Area Networks, the Internet, and mobile computing) by government
agencies to transform their relations with citizens, businesses, and other
government entities. This transformation can result in better service delivery,
improved interactions, citizen empowerment, increased transparency, and
reduced costs.

UNESCO Definition:

● E-Governance is understood as the use of electronic means to exercise

political, economic, and administrative authority in the management of a
country's affairs. It facilitates efficient, speedy, and transparent dissemination

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of information to the public and other agencies, improving government

administration and public services.

US E-Government Act of 2002:

● E-Government is defined as the use of web-based Internet applications and

other information technologies by the government to enhance access to and
delivery of government information and services to the public, other agencies,
and government entities, or to improve government operations, including
effectiveness, efficiency, and service quality.

Indian Perspective (Dr. APJ Abdul Kalam):

● E-Governance in the Indian context is envisioned as a transparent, smart

system with seamless access and secure, authentic information flow across
interdepartmental barriers, ensuring fair and unbiased service to citizens.

3. Structure and Scope of E-Governance

Basic Structure:

E-Governance operates at the intersection of government, citizens, and businesses.

The primary interactions in e-Governance are classified into:

● G2G (Government to Government): ICT is used to restructure governmental

processes, enhance information flow, and improve service delivery within and
between government agencies. This can occur horizontally (across agencies)
or vertically (across different levels of government).
● G2C (Government to Citizens): Citizens interact with the government
through various platforms, enabling access to public services 24/7 from
multiple locations. The goal is to make government services more
citizen-friendly.
● G2B (Government to Business): Businesses interact with the government
for services like licensing, permits, and procurement. The objective is to
reduce operational costs, cut red tape, and create a transparent business
environment.
● G2E (Government to Employees): Government employees interact with
their departments through ICT tools, improving communication and efficiency.

Scope:

E-Governance covers a broad range of government functions, including water

utilities, police, education, health, land records, property registration, and more. It is
not limited by geography, as it aims to integrate city, state, and national government
functions. The scope is also influenced by political, economic, and technological
factors.

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4. Phases of E-Governance Implementation

1. Information Phase:

● In this initial phase, the government provides basic information to the public
through websites, making government data accessible and improving
transparency and democracy.

2. Interaction Phase:

● The government begins to interact with the public through online platforms,
allowing citizens to download forms, submit applications, and communicate
via email. This phase saves time and increases efficiency, though final
transactions may still require physical visits.

3. Transaction Phase:

● Complete transactions can be conducted online, such as filing taxes,

renewing licences, and online voting. Security and personalization are critical
at this stage, requiring digital signatures and robust legal frameworks.

4. Transformation Phase:

● All government services are integrated into a single point of contact,

streamlining service delivery and creating a unified interface for citizens,
businesses, and government agencies. This phase represents the ultimate
goal of e-Governance, where all processes are digitised and interconnected.

5. Key E-Governance Initiatives in India under Digital India

The Digital India program, launched by the Ministry of Electronics and Information
Technology (MeitY), aims to transform India into a digitally empowered society and
knowledge-based economy. Some major initiatives include:

Common Services Centres (CSCs):

● CSCs are digital service delivery points in rural areas, offering over 400
services ranging from government to business services. There are currently
5.31 lakh CSCs, with 4.20 lakh operational at the Gram Panchayat level.

UMANG (Unified Mobile Application for New-age Governance):

● UMANG is a mobile application that provides citizens access to over 1,570

government services and more than 22,000 bill payment services, making
government services accessible anytime, anywhere.

DigiLocker:

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● DigiLocker facilitates the digital storage and retrieval of public documents,

reducing the need for physical paperwork. It has over 11.7 crore users, with
more than 532 crore documents available from 2,167 issuer organizations.

Unified Payment Interface (UPI):

● UPI is a leading digital payment platform integrated with 330 banks, facilitating
over 586 crore monthly transactions worth more than ₹10 lakh crore.

CO-WIN:

● CO-WIN is the platform used for managing COVID-19 vaccination

registrations, appointments, and certificates. It has facilitated over 203 crore
vaccination doses and 110 crore registrations.

Direct Benefit Transfers (DBT):

● DBT enables the direct transfer of subsidies and benefits to citizens' bank
accounts. So far, ₹24.3 lakh crore has been disbursed through the DBT
platform across 315 schemes and 53 ministries.

MyGov:

● MyGov is a citizen engagement platform that promotes participatory

governance, with over 2.48 crore active users.

6. Data Governance and Privacy

Data governance is essential for the socio-economic development of the country.

The Indian government has initiated several platforms and policies for effective data
governance:

Open Government Data (OGD):

● The OGD platform facilitates data sharing to promote innovation. It hosts over
5.65 lakh datasets across 12,800+ catalogues, with 93.5 lakh downloads.

API Setu:

● API Setu is a platform for data exchange among systems, featuring over
2,100 APIs used by 1,000+ organisations.

National Data Governance Framework Policy:

● This draft policy aims to maximise the efficiency of data-led governance,

enhance public service delivery, and promote data-based research and
innovation. It is currently under finalisation.

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7. Advantages of E-Governance

E-Governance offers numerous advantages:

● Better Access to Information and Services: ICT provides timely, reliable

information and easy access to public services, reducing time, effort, and cost
for citizens.
● Increased Efficiency and Accountability: The use of ICT, combined with
process re-engineering, simplifies government functions, enhances
decision-making, and increases efficiency and accountability.
● Expanded Reach of Governance: The widespread adoption of technology,
including mobile telephony and the internet, brings government services
closer to citizens, increasing participation in governance.

8. Challenges and Solutions

Despite its benefits, e-Governance faces several challenges, including:

● Technological Barriers: The digital divide between urban and rural areas,
and varying levels of digital literacy, pose significant challenges.
● Data Privacy and Security: The protection of personal data is a major
concern, necessitating robust legal frameworks and enforcement
mechanisms. The IT Act of 2000 addresses these issues by providing legal
provisions for data privacy and security.

9. Future Prospects of E-Governance

● Electronic Delivery of Services: Aiming to deliver all government services

electronically, making processes more transparent, citizen-centric, and
efficient.
● Breaking Information Silos: Creating shared resources for government
entities to enhance service delivery.
● Mobile Governance: Promoting the delivery of government services via
mobile platforms.
● Shared Service Platforms: Building platforms for e-payment, GIS, call
centres, etc., to accelerate the adoption of e-Governance.
● Cyber Security: Focusing on creating a safe and secure e-Governance
environment.
● Citizen Engagement: Increasing public awareness and participation through
digital platforms and social media.

10. Conclusion

E-Governance represents a significant shift in how governments operate, interact

with citizens, and deliver services. By embracing digital technologies, governments

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can improve transparency, efficiency, and public service delivery. The initiatives
under the Digital India program are paving the way for a more connected and
empowered society. However, the successful implementation of e-Governance
depends on overcoming challenges related to digital literacy, infrastructure, and data
security. The future of e-Governance in India looks promising, with ongoing efforts to
expand digital services, improve data governance, and enhance citizen engagement.

Citizen Charter

Introduction

The Citizen’s Charter is a vital mechanism designed to improve public service

delivery by making the process more transparent, accountable, and citizen-centric.
Originally conceived in the United Kingdom in 1991 under Prime Minister John Major,
the Citizen’s Charter emerged as part of the broader public administration reforms
aimed at enhancing the responsiveness of public services to the needs of citizens.
Since its inception, this concept has been widely adopted by various countries,
including India, where it has become a cornerstone of public governance reforms.

The essence of the Citizen’s Charter is to provide a clear statement of the standards
of service that citizens can expect from public agencies and to establish a framework
for redressal if these standards are not met. By setting clear expectations and
fostering accountability, the Citizen’s Charter plays a crucial role in promoting good
governance.

International Scenario

The success of the Citizen’s Charter in the UK spurred its adoption in many other
countries, both developed and developing. Key examples include:

● Belgium (1992): Introduced the Public Service User Charter to standardize

service delivery across public sectors.
● Hong Kong (1992): Launched the Performance Pledge, which emphasized
commitment to service standards.
● France (1993): Implemented the Service Charter, focusing on transparency
and responsiveness in public services.
● Malaysia (1993): Established the Client’s Charter, which articulated service
standards and accountability mechanisms.
● Australia (1997): Developed the Service Charter aimed at ensuring
high-quality public services and improving public trust in government
institutions.
● South Africa (1997): Introduced the People’s First initiative, which focused
on improving public service delivery in the post-apartheid era.

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These charters typically focus on improving service quality, setting clear performance
standards, ensuring transparency, and providing mechanisms for citizens to seek
redress in case of service failures. The common objectives across these countries
include enhancing responsiveness, increasing accountability, and fostering
transparency in government operations.

The Indian Scenario

The concept of the Citizen’s Charter in India was introduced during the 1990s as part
of the larger agenda of administrative reforms aimed at making the government more
citizen-friendly. The origins of the Citizen’s Charter in India can be traced back to the
national conference on “An Agenda for Effective and Responsive Administration”
held in 1996. This conference, attended by Chief Secretaries of all states, highlighted
the need for a more accountable and transparent government.

In 1997, following the adoption of the Action Plan for Effective and Responsive
Government by the Chief Ministers, the Government of India formally introduced the
Citizen’s Charter. The Department of Administrative Reforms and Public Grievances
(DARPG) was tasked with coordinating the formulation and implementation of
Citizen’s Charters across various ministries and departments. Since then, numerous
ministries, departments, and public sector organisations have adopted Citizen’s
Charters to improve public service delivery.

As of now, approximately 600 Central Government Departments/Organizations and

1120 State Government Departments have formulated Citizen's Charters, reflecting a
broad commitment across different levels of government to uphold the principles of
good governance.

Definition and Principles

A Citizen’s Charter is a document that publicly declares the standards of service a

citizen can expect from a government organisation. It outlines the rights of citizens,
the services provided by the organisation, the standards of service delivery, and the
mechanisms available for grievance redressal. The key objective of a Citizen’s
Charter is to make public services more accessible, efficient, and responsive to the
needs of citizens.

The principles of the Citizen’s Charter as adopted in India include:

1. Quality: Focus on improving the quality of services provided to citizens.

2. Choice: Where possible, providing citizens with options in service delivery.
3. Standards: Clearly specifying what citizens can expect in terms of service
delivery.
4. Value: Ensuring that public services provide value for the taxpayers’ money.
5. Accountability: Holding individuals and organisations accountable for their
actions.

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6. Transparency: Ensuring that the rules, procedures, and schemes are clear
and accessible to all citizens.

These principles are designed to shift the focus of governance from the bureaucratic
processes to the needs and rights of citizens, thereby promoting a more democratic
and participatory form of governance.

Components of a Citizen's Charter

An effective Citizen’s Charter typically includes the following key components:

● Vision and Mission Statements: These statements provide the overarching

goals and objectives of the organisation, reflecting its commitment to public
service.
● Details of Services Provided: A comprehensive list of all services offered by
the organisation, along with clear information on how to access these
services, including any applicable fees, required documentation, and
processing times.
● Service Standards: Specific, measurable standards for each service,
indicating the expected quality, timeliness, and responsiveness of service
delivery. These standards serve as benchmarks against which service
performance can be assessed.
● Grievance Redress Mechanism: A well-defined process for lodging
complaints and seeking redress in case of service failures. This includes
information on how to file a complaint, the timeline for resolution, and the
contact details of responsible officials.
● Responsibilities and Obligations: Clear information on what is expected
from citizens, including any responsibilities they must fulfill to access services.
This might include providing accurate information, adhering to timelines, and
following prescribed procedures.
● Public Awareness and Access: Efforts to ensure that the Citizen’s Charter is
widely disseminated and easily accessible to all citizens. This includes
publishing the charter online, displaying it prominently in public offices, and
conducting awareness campaigns to educate citizens about their rights.

Implementation in India

While the adoption of Citizen’s Charters across various government departments is

widespread, their implementation has been fraught with challenges. Research and
analysis of the implementation of Citizen’s Charters in India reveal several issues:

1. Lack of Public Awareness: Despite the existence of numerous Citizen’s

Charters, a significant portion of the population remains unaware of their
rights and the standards of service they can expect. This lack of awareness
undermines the effectiveness of the charters.

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2. Poorly Designed Charters: Many Citizen’s Charters are found to be vague,

poorly structured, and not user-friendly. They often lack specific, measurable
service standards and do not clearly outline the grievance redress
mechanisms available to citizens.
3. Inadequate Resources: The implementation of Citizen’s Charters requires
adequate resources, including trained personnel, infrastructure, and financial
support. In many cases, these resources are insufficient, leading to
suboptimal implementation.
4. Bureaucratic Resistance: There is often resistance within the bureaucracy
to the implementation of Citizen’s Charters, primarily due to the perceived
increase in accountability and the potential for increased scrutiny of their
work.
5. Lack of Monitoring and Evaluation: Regular monitoring and evaluation of
the effectiveness of Citizen’s Charters are essential to ensure that they are
delivering the intended benefits. However, in many cases, such mechanisms
are either absent or inadequately implemented, leading to the charters
becoming mere formalities rather than effective tools for improving public
service delivery.

Contemporary Developments

In recent years, there has been a renewed focus on enhancing the effectiveness of
Citizen’s Charters in India. Key developments include:

● Sevottam Framework: The Sevottam model is an integrated framework that

combines the Citizen’s Charter with a Quality Management System to improve
public service delivery. The model is designed to ensure that public services
are delivered in a timely, transparent, and accountable manner. It includes a
three-stage process: (1) Citizen’s Charter, (2) Public Grievance Redress
Mechanism, and (3) Service Delivery Capability.
● Right to Public Services Acts: Several Indian states have enacted Right to
Public Services legislation, which mandates the timely delivery of public
services and imposes penalties on officials for delays. This legislation
complements the Citizen’s Charter by providing a legal framework for
enforcing service standards and ensuring accountability.
● Digital Initiatives: The integration of digital technologies into public service
delivery has significantly enhanced the accessibility and efficiency of services.
Online portals and mobile apps have been developed to provide citizens with
easy access to information about services, track the status of their
applications, and file grievances. These digital platforms also provide
real-time feedback mechanisms, allowing for continuous improvement in
service delivery.
● Public Participation: Efforts are being made to involve citizens more actively
in the formulation, implementation, and monitoring of Citizen’s Charters.

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Public consultations, feedback surveys, and participatory audits are some of

the methods being employed to ensure that the charters reflect the actual
needs and expectations of citizens.

Analysis of Research Studies on Citizen’s Charter

Several research studies have been conducted to evaluate the impact of Citizen’s
Charters in India. Key findings include:

● Impact on Service Quality: Studies have shown that when effectively

implemented, Citizen’s Charters can lead to significant improvements in
service quality. However, the impact varies widely across different sectors and
regions, depending on the level of commitment from the implementing
agencies.
● Challenges in Implementation: Common challenges identified in these
studies include the lack of awareness among citizens, inadequate training of
staff, and the absence of a robust monitoring and evaluation framework.
These challenges often lead to the Citizen’s Charters being perceived as
mere formalities rather than effective tools for improving public service
delivery.
● Role of Technology: The integration of Information and Communication
Technology (ICT) in public service delivery has been highlighted as a critical
factor in the successful implementation of Citizen’s Charters. Digital platforms
not only make services more accessible but also enhance transparency and
accountability by providing real-time data on service delivery.
● Need for Continuous Improvement: The studies emphasize the need for
continuous review and updating of Citizen’s Charters to ensure they remain
relevant and effective in a rapidly changing socio-economic environment.
Regular feedback from citizens and stakeholders is crucial for identifying
areas for improvement and making necessary adjustments.

Conclusion

The Citizen’s Charter is a powerful tool for promoting good governance by making
public service delivery more transparent, accountable, and responsive to the needs
of citizens. However, its success in India has been mixed, with significant variations
in implementation across different sectors and regions.

To realise the full potential of the Citizen’s Charter, it is essential to address the
existing challenges, such as low public awareness, inadequate resources, and
bureaucratic resistance. Strengthening the monitoring and evaluation framework,
enhancing public participation, and leveraging digital technologies are critical steps
in this direction.

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Moreover, the Citizen’s Charter should not be seen as a static document but as a
dynamic tool that evolves with changing citizen needs and expectations. Regular
updates, informed by continuous feedback and research, are necessary to ensure
that the Citizen’s Charter remains relevant and effective in promoting good
governance in India.

The ultimate goal of the Citizen’s Charter is to empower citizens by providing them
with the information and mechanisms they need to hold public service providers
accountable. By fostering a more citizen-centric approach to governance, the
Citizen’s Charter can play a pivotal role in building trust between the government and
the people, thereby strengthening the foundations of democracy in India.

Challenges in Policy Implementation: Contemporary Insights and

Examples

Policy implementation is a complex process, often fraught with challenges that can
impede the achievement of intended outcomes. These challenges are multifaceted,
involving issues related to policy design, resource allocation, administrative capacity,
and broader socio-political dynamics. Below is a detailed exploration of these
challenges, enriched with contemporary insights and examples.

1. Policy Design Issues

● Top-Down Approach: Many policies are designed at the central level without
sufficient consideration of local contexts. This "one-size-fits-all" approach
often leads to poor outcomes. For instance, the Indira Awas Yojana (IAY),
aimed at providing housing to Below Poverty Line (BPL) families, failed in
many areas because it did not account for the fact that many beneficiaries did
not own land. Without land, they were unable to build houses, leading to the
exclusion of some of the poorest citizens from the program.
● Inadequate Flexibility: Policies that lack flexibility to adapt to changing
circumstances or diverse local conditions are prone to failure. For example,
the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA)
mandates implementation through Gram Panchayats. However, in areas
under the Fifth Schedule of the Indian Constitution, where local governance
structures are often weak, this has led to significant implementation
challenges.

2. Funding Constraints

● Insufficient Allocation: Adequate funding is crucial for the success of any

policy. The National Rural Health Mission (NRHM) has made significant
strides in improving healthcare infrastructure. However, its long-term
sustainability was threatened when its funding was not immediately renewed

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under the 12th Five-Year Plan. The program's success illustrates the critical
role of consistent and adequate funding.
● Leakage and Misallocation: Corruption and mismanagement of funds are
rampant issues. In the case of IAY, funds are often released in instalments
linked to construction progress. However, many beneficiaries fail to receive
further instalments due to insufficient initial funding, leaving them unable to
complete their homes. Moreover, political interference often leads to the
misallocation of funds to individuals who are not the intended beneficiaries.

3. Administrative and Institutional Challenges

● Lack of Capacity: Effective policy implementation requires a robust

administrative structure. Many programs, such as MGNREGA, suffer from a
lack of technical and professional staff. The Comptroller and Auditor General
(CAG) found that many states had not appointed necessary officers, leading
to significant lapses in the program’s execution.
● Inadequate Infrastructure: The absence of necessary infrastructure is
another significant hurdle. The Right to Education (RTE) Act, for instance, has
faced challenges due to a shortage of schools and qualified teachers,
particularly in states like Bihar. The state’s Common School System
Commission estimated a need for thousands of new schools and teachers to
meet RTE’s goals, but the Act itself does not adequately address these
infrastructural requirements.
● Poor Planning: Proper planning is essential for the success of any policy.
The NREGA, for example, promised the creation of durable assets such as
roads and water conservation systems. However, the CAG found that the
focus was disproportionately on road construction, with other important
projects being neglected.

4. Lack of Accountability and Transparency

● Poor Record-Keeping: Accountability mechanisms are often weak, leading to

inefficiencies and corruption. In MNREGA, for instance, the CAG reported
significant deficiencies in the maintenance of employment records. These
lapses facilitated the payment of wages to fictitious workers and led to
significant overpayments.
● Ineffective Social Audits: Social audits are crucial for transparency, but they
are often poorly conducted. In some cases, such as with MNREGA, audits are
superficial, sometimes even conducted by dubious organisations. This
undermines the effectiveness of the program and leads to widespread
corruption.

5. Corruption

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● Beneficiary Selection: Corruption in the selection of beneficiaries is a common

problem. For instance, in IAY, beneficiaries are supposed to be selected by
Gram Panchayats, but political influence often results in ineligible individuals
receiving benefits, while the truly needy are left out.
● Fund Misappropriation: Corruption also affects the distribution of funds. A
significant portion of the funds allocated for various welfare schemes is often
syphoned off by officials and intermediaries, reducing the impact of these
programs.

Contemporary Examples

● Pradhan Mantri Awas Yojana (PMAY): This housing scheme has faced issues
similar to IAY, particularly in urban areas where land availability is a significant
challenge. Additionally, the scheme's success is heavily dependent on state
governments' ability to provide necessary clearances and support, which has
led to varying levels of success across different states.
● Direct Benefit Transfer (DBT): While DBT has been lauded for reducing
corruption by transferring funds directly to beneficiaries' bank accounts, it has
also encountered issues such as exclusion errors, where the most
marginalised people, lacking proper identification or bank accounts, are
unable to access benefits.

Conclusion

The challenges in policy implementation are deeply entrenched and multifaceted.

Addressing these requires a comprehensive approach that includes better policy
design tailored to local contexts, adequate and sustained funding, strengthening
administrative capacities, enhancing transparency and accountability, and minimizing
corruption. Contemporary examples from various Indian welfare schemes highlight
the persistent nature of these challenges, emphasizing the need for continuous
reforms and innovations in policy implementation strategies.

Participative Governance: An Overview and Contemporary Insights

Participative governance is a crucial aspect of democratic systems, where the

involvement of citizens in decision-making processes is emphasised. It is rooted in
the belief that governance should not be a top-down approach but rather one where
the public plays an integral role in shaping policies and their implementation.

Theories and Historical Context

The concept of participation has evolved from ancient times, particularly from the
classical Greek idea of citizenship, where active participation in public affairs was
considered essential. Aristotle, for example, viewed citizenship as sharing in the

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administration of justice and holding public office. This idea, however, diminished as
political communities expanded and governance became more centralised.

In the modern context, participation is often viewed through two lenses:

1. Citizenship Rights: Participation is seen as a fundamental right, where

citizens are entitled to engage in the political processes of their country.
2. Developmental Approach: Participation is considered essential for inclusive
development, ensuring that policies reflect the needs and realities of all social
groups, particularly the marginalised.

Participative Governance in India

The document you've provided delves deeply into the evolution of participative
governance in India. Initially, the Indian state, post-independence, did not prioritise
participation in its policy framework. The Nehruvian model, focused on centralised
planning and the role of the state as the primary driver of development, relegated
participation to a secondary role, mainly involving local elites through the Congress
system.

However, this approach led to challenges, especially as India's democracy

deepened, and more diverse groups began demanding inclusion in the
decision-making process. The 1980s and 1990s witnessed a shift towards greater
participatory governance, driven by several factors:

● Political Crises: The inability of centralised technocratic planning to

accommodate the growing demands of newly mobilised social groups.
● Economic Liberalisation: The shift towards liberalisation, decentralisation,
and privatisation required a new approach to governance that was more
inclusive and participatory.

This period saw the rise of Panchayati Raj Institutions (PRIs) as a significant move
towards decentralised governance, where local self-governments were empowered
to make decisions for their communities. This was a critical step in embedding
participative governance into the fabric of Indian democracy.

Contemporary Developments

In recent years, the importance of participative governance has only grown. Several
contemporary trends highlight the ongoing evolution of this concept:

1. Digital Governance: The advent of digital tools and platforms has

revolutionised participative governance. The Indian government’s initiatives
like the MyGov portal allow citizens to contribute ideas and feedback on
various policy issues directly.

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2. Civil Society Involvement: The role of civil society organisations in

participative governance has expanded. These organisations often serve as
intermediaries, facilitating dialogue between the government and citizens,
particularly marginalised groups.
3. Participatory Budgeting: Some states and cities in India have begun
experimenting with participatory budgeting, where citizens are directly
involved in deciding how public funds should be allocated.
4. Right to Information (RTI): The RTI Act, enacted in 2005, has been a
significant tool in fostering transparency and participative governance. It
empowers citizens to seek information from public authorities, thereby holding
them accountable.
5. Decentralisation Efforts: Efforts to further decentralised governance
continue, with increased powers being devolved to local bodies. This
decentralisation aims to bring decision-making closer to the people, thereby
increasing participation.

Challenges and Future Directions

Despite these advancements, participative governance in India faces several

challenges:

● Social Inequalities: Persistent social inequalities limit the ability of

marginalised groups to participate effectively in governance processes.
● Bureaucratic Resistance: There is often resistance from entrenched
bureaucratic structures that are reluctant to share power with local bodies and
citizens.
● Political Will: The success of participative governance largely depends on
the political will to genuinely include citizens in decision-making processes.

For participative governance to achieve its transformative potential, it must address

these challenges. This involves ensuring that participatory mechanisms are
genuinely inclusive, addressing power imbalances, and fostering a culture of
transparency and accountability within government institutions.

Conclusion

Participative governance in India has come a long way, evolving from a system that
initially sidelined public participation to one where citizen involvement is increasingly
recognized as crucial. However, realising the full potential of participative
governance requires continued efforts to empower marginalised groups, leverage
digital tools, and ensure that participatory processes are genuinely inclusive and
effective. By doing so, participative governance can truly become a vehicle for social
justice and democratic deepening in India.

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PM Jan Dhan Yojana (PMJDY)

Introduction and Background

The Pradhan Mantri Jan Dhan Yojana (PMJDY) was launched on August 28, 2014,
with the objective of ensuring access to various financial services, such as savings
and deposit accounts, remittance, credit, insurance, and pensions, in an affordable
manner. The scheme was designed to include all unbanked households in a
time-bound manner, leveraging technology through the JAM (Jan
Dhan-Aadhaar-Mobile) trinity. PMJDY is considered a pivotal step in the Indian
government's broader strategy to achieve comprehensive financial inclusion and
streamline the delivery of subsidies and welfare benefits via Direct Benefit Transfers
(DBTs).

Achievements of PMJDY

1. Massive Expansion in Banking Coverage:

○ Since its inception, PMJDY has led to the opening of over 53 crore
bank accounts by 2023, bringing a large portion of the previously
unbanked population into the formal banking system. As a result, more
than 80% of adults now have a formal financial account, a significant
increase from about 50% in 2011.
○ The inclusion of financially excluded households, especially in rural and
semi-urban areas, is one of the most significant achievements of the
scheme. It has created a vast banking infrastructure that has facilitated
financial inclusion on an unprecedented scale.
2. Reduction in Gender Disparity in Financial Access:
○ A notable achievement of the PMJDY is the significant reduction in the
gender gap in account ownership. Focused efforts were made to
encourage women to open and operate bank accounts, resulting in a
higher proportion of female account holders. This move has been
instrumental in empowering women by giving them more control over
their finances and ensuring their inclusion in the formal economy.
3. Plugging Leakages and Enhancing Direct Benefit Transfers (DBTs):
○ The scheme has been central to the government's efforts to eliminate
leakages in the subsidy and benefit transfer system. Over the last
decade, ₹38.49 lakh crore has been transferred through DBTs, and
₹3.48 lakh crore worth of leakages have been plugged. This represents
a major step towards improving the efficiency and transparency of
welfare programs, reducing corruption, and ensuring that benefits
reach the intended recipients.
○ The integration of PMJDY accounts with Aadhaar has facilitated the
identification of beneficiaries and streamlined the delivery of subsidies,
further reducing the scope for fraud and duplication.
4. Promotion of Digital Transactions and Payment Systems:

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○ PMJDY has played a key role in the digitalization of the Indian

economy. By encouraging the use of RuPay debit cards and mobile
banking, the scheme has increased the adoption of digital payment
systems. This shift towards digital transactions is critical for reducing
cash dependency and promoting transparency in financial dealings.
○ As of July 2024, India has recorded a massive 57.5 billion UPI
transactions, highlighting the widespread acceptance and use of digital
payment systems facilitated by PMJDY.
5. Financial Literacy and Inclusion of Marginalised Communities:
○ PMJDY has not only increased access to banking services but also
promoted financial literacy, particularly among marginalised
communities. Through various financial literacy programs, the scheme
has educated beneficiaries about the benefits of saving, the use of
debit cards, and the importance of maintaining a bank account.
○ The scheme has also provided life insurance and accident cover to
account holders, further enhancing the social security net for the poor
and vulnerable.

Challenges and Limitations

1. High Proportion of Dormant and Low-Balance Accounts:

○ Despite the large number of accounts opened under PMJDY, a
significant proportion of these accounts remain dormant or have low
balances. As of February 2018, nearly 17% of PMJDY accounts were
zero-balance accounts, indicating that many beneficiaries are not
actively using their accounts for transactions or savings.
○ The average balance in many PMJDY accounts remains low, with a
significant portion of accounts holding less than ₹2,500. This raises
questions about the scheme's effectiveness in fostering a savings
culture among the poor.
2. Limited Access to Formal Credit:
○ One of the major objectives of financial inclusion is to provide access to
formal credit. However, PMJDY has made limited progress in this area.
The credit-deposit ratio for rural and semi-urban populations has
stagnated since the launch of the scheme, indicating that access to
formal credit has not improved significantly for the poor.
○ The number of small loans (under ₹25,000) has declined, and the
share of small borrowal accounts continues to fall. This suggests that
many PMJDY account holders still rely on informal sources of credit,
such as moneylenders, who often charge exorbitant interest rates. The
persistence of informal lending highlights the scheme's failure to fully
integrate the poor into the formal financial system.
3. Duplication of Accounts and Inefficient Targeting:

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○ The pressure on banks to meet account opening targets has led to the
duplication of accounts, where individuals open multiple accounts to
fulfil these targets. According to reports, a significant number of
PMJDY accounts are duplicates, skewing the data on actual financial
inclusion.
○ This issue is compounded by the fact that many of these duplicate
accounts are not actively used, which undermines the scheme's goal of
bringing meaningful financial inclusion to the unbanked population.
4. Inadequate Infrastructure and Outreach in Rural Areas:
○ While PMJDY has expanded banking coverage, significant gaps
remain in rural and remote areas. The banking infrastructure in these
regions is often inadequate, with limited access to bank branches,
ATMs, and digital services.
○ The reliance on Bank Mitras (banking correspondents) to extend
banking services in unbanked areas has been only partially successful,
with many Bank Mitras facing challenges such as lack of resources,
inadequate training, and limited connectivity.
5. Challenges in Digital and Financial Literacy:
○ Although the scheme has promoted digital transactions, the adoption of
digital banking services remains low, particularly in rural areas. Only
30% of adults reported having the option to access their accounts
digitally, and less than 1% used mobile money as of 2017.
○ The integration of Aadhaar with bank accounts has further complicated
the situation, with many beneficiaries facing issues related to Aadhaar
linking, authentication failures, and exclusion from services. These
challenges highlight the need for improved digital and financial literacy
among the scheme's beneficiaries.
6. Operational and Governance Issues:
○ The implementation of PMJDY has been largely driven by public sector
banks, with private sector banks playing a minimal role. This raises
concerns about the sustainability of the scheme, especially given the
financial burden on public sector banks and the ongoing issues of
non-performing assets (NPAs).
○ The role of private sector banks in achieving financial inclusion needs
to be enhanced, with better regulation and incentives to ensure that
they fulfil their social obligations.
7. Consumer Protection and Financial Regulation:
○ As PMJDY expands, there is a growing need to strengthen consumer
protection frameworks. Many beneficiaries, particularly those from
marginalised communities, are vulnerable to exploitation and fraud.
Ensuring that they are protected from predatory practices and are
educated about their rights is crucial for the scheme's long-term
success.

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○ Financial regulation needs to be tightened to prevent issues such as

account duplication, misuse of accounts, and to ensure that
beneficiaries have access to fair and transparent financial services.

Recommendations and Future Directions

1. Enhancing Access to Formal Credit:

○ To achieve true financial inclusion, PMJDY must go beyond just
opening bank accounts and focus on improving access to formal credit.
This could involve developing new financial products tailored to the
needs of small borrowers and farmers, such as microloans and
credit-linked savings schemes.
○ The government should also explore partnerships with microfinance
institutions and cooperatives to extend credit to underserved
communities.
2. Strengthening Digital and Financial Infrastructure:
○ There is a need to invest in the digital and physical infrastructure
required to support PMJDY, particularly in rural and remote areas. This
includes expanding the network of bank branches, ATMs, and digital
payment systems, as well as improving internet connectivity and
mobile banking services.
○ Enhancing the capabilities of Bank Mitras and providing them with the
necessary resources and training will be essential to ensure that they
can effectively deliver banking services in unbanked areas.
3. Improving Financial Literacy and Awareness:
○ Financial literacy programs should be scaled up to educate
beneficiaries about the benefits of saving, responsible borrowing, and
the use of digital banking services. These programs should be tailored
to the needs of different demographic groups, including women, elderly
citizens, and rural populations.
○ Awareness campaigns should also focus on educating beneficiaries
about their rights and the services available to them under PMJDY, to
ensure that they can make informed financial decisions.
4. Enhancing Consumer Protection Frameworks:
○ As the scheme continues to expand, it is crucial to strengthen
consumer protection frameworks to safeguard the interests of
beneficiaries. This includes ensuring that financial products and
services are offered in a transparent and fair manner, and that
beneficiaries have access to grievance redressal mechanisms.
○ The government should also work to prevent exclusion due to issues
related to Aadhaar linking and authentication, ensuring that all eligible
beneficiaries can access the services they are entitled to.
5. Monitoring and Evaluation:

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○ Continuous monitoring and evaluation of PMJDY is essential to assess

its impact and identify areas for improvement. This should include
tracking the usage of accounts, access to credit, and the adoption of
digital services, as well as analyzing the socio-economic impact of the
scheme on different population groups.
○ Independent evaluations and audits should be conducted to ensure
that the scheme is being implemented effectively and that it is
achieving its intended goals.
6. Policy Integration and Holistic Approach:
○ PMJDY should be integrated with broader socio-economic policies
aimed at poverty reduction, employment generation, and social
welfare. A holistic approach to financial inclusion is needed, which
addresses not only banking access but also issues related to income
generation, social security, and empowerment.
○ The government should also explore synergies with other welfare
schemes, such as the Pradhan Mantri Suraksha Bima Yojana (PMSBY)
and the Atal Pension Yojana (APY), to provide a comprehensive social
security net for the poor and marginalised.

Conclusion

The Pradhan Mantri Jan Dhan Yojana has been a landmark initiative in India's
financial inclusion journey, bringing millions of unbanked households into the formal
financial system. However, while the scheme has made significant strides in
expanding banking coverage, it faces several challenges that need to be addressed
to achieve true financial inclusion.

The scheme's success in reducing the gender gap, plugging leakages in subsidy
transfers, and promoting digital transactions is commendable. However, the high
proportion of dormant accounts, limited access to formal credit, and the persistence
of informal lending highlight the need for a more comprehensive approach.

Going forward, PMJDY must evolve to address these challenges by enhancing

access to credit, strengthening digital and financial infrastructure, improving financial
literacy, and ensuring consumer protection. With the right policy interventions and a
focus on sustainability, PMJDY has the potential to transform financial inclusion in
India and empower millions of people to achieve economic security and prosperity.

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