Tag: Constitution of India

Kesavananda Bharati v. State of Kerala

 Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970), also known as the Kesavananda Bharati judgement, was a landmark decision of the Supreme Court of India that outlined the basic structure doctrine of the Indian Constitution.[1] The case is also known as the Fundamental Rights Case. The court in a 7-6 decision asserted its right to strike down amendments to the constitution that were in violation of the fundamental architecture of the constitution.[2]

Justice Hans Raj Khanna asserted through the Basic Structure doctrine that the constitution possesses a basic structure of constitutional principles and values. The Court partially cemented the prior precedent Golaknath v. State of Punjab, which held that constitutional amendments through Article 368 were subject to fundamental rights review, but only if they could affect the ‘basic structure of the Constitution’. At the same time, the Court also upheld the constitutionality of the first provision of Article 31-C, which implied that amendments seeking to implement the Directive Principles, which do not affect the ‘Basic Structure,’ shall not be subjected to judicial review.

The doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Indian parliament.

The 13-judge Constitution bench of the Supreme Court deliberated on the limitations, if any, of the powers of the elected representatives of the people and the nature of fundamental rights of an individual. In a verdict divided 7–6, the court held that while the Parliament has ‘wide’ powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.[3]

When this case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was unprecedented. The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Constitution.

  1.  “Kesavananda Bharati … vs State Of Kerala And Anr on 24 April, 1973”. Indian Kanoon. Retrieved 24 June 2012.
  2. ^ Keane, Debasish Roy Chowdhury & John (21 December 2021). “From checks and balances to compliance: How the judiciary has responded to government pressure”. Scroll.in.
  3. ^ “Kesavananda Bharati … vs State Of Kerala And Anr on 24 April, 1973”. Indian Kanoon. para. 787. Retrieved 24 June 2012.

List of Schedules of Indian Constitution

 

Schedules of Indian Constitution – 12 Schedules of India

There are 12 Schedules in the Constitution of India. One of the first mentions of Schedules was made in the Government of India Act, 1935 where it included 10 Schedules. Later, when the Indian Constitution was adopted in 1949, it consisted of 8 Schedules. Today, with the amendments in the Indian Constitution, there are a total of 12 Schedules.

This article will provide you with a list of Schedules of Indian Constitution, important for the IAS Exam from the perspective of Indian Polity (Mains GS-II).

List of Schedules of Indian Constitution

The table given below discusses the list of schedules of the Indian Constitution, important from the UPSC exam perspective:

Schedules in Indian Constitution
Schedules Features of Schedules
First Schedule of Indian Constitution It contains the name of States and Union Territories

Territorial Jurisdiction of states is also included
Second Schedule of Indian Constitution The provisions in relation to allowances, privileges, emoluments of:

  • President of India
  • Governors of Indian States
  • Speaker of Lok Sabha & Deputy Speaker of Lok Sabha
  • Chairman of Rajya Sabha & Deputy Chairman of Rajya Sabha
  • Speaker and Deputy Speaker of Legislative Assemblies of Indian States
  • Chairman and Deputy Chairman of Legislative Councils of the Indian States
  • Supreme Court Judges
  • High Court Judges
  • Comptroller & Auditor General of India (CAG)
Third Schedule It contains the forms of oath and affirmation for:

  • Union Ministers of India
  • Parliament Election Candidates
  • Members of Parliament (MPs)
  • Supreme Court Judges
  • Comptroller and Auditor General
  • State Ministers
  • State Legislature Elections’ Candidates
  • State Legislature Members
  • High Court Judges
Fourth Schedule It contains the provisions in relation to the allocation of seats for States and Union Territories in the Rajya Sabha
Fifth Schedule It contains provisions in relation to the administration and control of scheduled areas and scheduled tribes
Sixth Schedule It contains provisions in relation to the administration of tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram
Seventh Schedule This schedule deals with the three legislative lists:

  • Union
  • State
  • Concurrent
Eighth Schedule It deals with the 22 official languages recognized by the Constitution of India:

  • Assamese
  • Bengali
  • Bodo
  • Dogri (Dongri)
  • Gujarati
  • Hindi
  • Kannada
  • Kashmiri
  • Konkani
  • Mathili (Maithili)
  • Malayalam
  • Manipuri
  • Marathi
  • Nepali
  • Oriya
  • Punjabi
  • Sanskrit
  • Santhali
  • Sindhi
  • Tamil
  • Telugu
  • Urdu
Ninth Schedule It deals with the state acts and regulations of that deal with land reforms and

abolition of the zamindari system. It also deals with the acts and regulations of the Parliament dealing with other matters.

Note:

1st Amendment Act 1951 added the Ninth Schedule to protect the laws included in it from judicial scrutiny on the ground of violation of fundamental rights.

However, in 2007, the Supreme Court ruled that the laws included in this schedule after

April 24, 1973, are now open to judicial review
Tenth Schedule It contains provisions relating to disqualification of the members of Parliament and State Legislatures on the ground of

defection.

Note:

This schedule was added by the 52nd Amendment Act of 1985, also known as Anti-defection Law
Eleventh Schedule It contains the provisions that specify the powers, authority and responsibilities of Panchayats. It has 29 matters.

Note:

This schedule was added

by the 73rd Amendment Act of 1992
Twelfth Schedule It deals with the provisions that specify the powers, authority and responsibilities of Municipalities. It has 18 matters.

Note:

This schedule was added

by the 74th Amendment Act of 1992

Since Schedules of Indian Constitution makes an important topic of the Indian Polity subject of UPSC syllabus 2022; aspirants should keep these schedules in mind. 

What is 12th Schedule of Indian Constitution?

 12th Schedule of the Indian Constitution deals with the provisions that specify the powers, authority and responsibilities of Municipalities. This schedule was added by the 74th Amendment Act of 1992. It has 18 matters.

  1. Urban planning including town planning.
  2. Regulation of land-use and construction of buildings.
  3. Planning for economic and social development.
  4. Roads and bridges.
  5. Water supply for domestic, industrial and commercial purposes.
  6. Public health, sanitation conservancy and solid waste management.
  7. Fire services.
  8. Urban forestry, protection of the environment and promotion of ecological aspects.
  9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.
  10. Slum improvement and upgradation.
  11. Urban poverty alleviation.
  12. Provision of urban amenities and facilities such as parks, gardens, playgrounds.
  13. Promotion of cultural, educational and aesthetic aspects.
  14. Burials and burial grounds; cremations, cremation grounds; and electric crematoriums.
  15. Cattle pounds; prevention of cruelty to animals.
  16. Vital statistics include registration of births and deaths.
  17. Public amenities including street lighting, parking lots, bus stops and public conveniences.
  18. Regulation of slaughter houses and tanneries.

What is Uniform Civil Code?

See the source image

Article 44 directs the state to secure a uniform civil code for the citizens applicable throughout the territory of India. Its main motive is to establish gender justice in India. Even though the state has not shown any efforts towards the enactment of uniform civil code but the judiciary considers it essential to lookout the necessity of the code in the country so as to establish gender justice. Also, the uniformity in the application of laws such as marriage laws, divorce and maintenance laws, etc.    

Article 44 states that, “The state shall endeavor to secure for the citizens a uniform civil code throughout the India.” 

The above article was looked upon by the historical judgment in Sarla Mudgal vs. Union of India[1]. The Court had directed the government through the Secretary of Ministry Law and Justice, to file an affidavit, and issue a Uniform Civil Law. There had been many cases witnessed that involved such incidents. In the cases, the husband of the plaintiff had converted his religion to Islam and married another woman. The problems were not confined to this but had a large scope, for instance in a case the man had married to a Muslim woman and later left her and converted to Hinduism again. By this, the grievance of the woman was that she could not claim and ask for any protection under the Muslim law as she continued to be a Muslim.  In another case, the petitioner was threatened by her husband that he would embrace Islam and marry another woman.  She had asked for a restraining order by the court for preventing her husband to marry another woman.

On the facts, the court held that a Hindu marriage continues to exist even after conversion to Islam. And the husband as declared by the court under the section 494 of IPC will be held liable under the practice of bigamy.

Uniform Civil Code seeks to replace personal laws that were based on the scriptures and holy books and customs of each specific religion and community in India by a common set of rules and law. As discussed before, the list of marriage, divorce and the maintenance comes under the list.

Recently, the Supreme Court considering the judgments held that:

  1. The constitution in Article 44 requires the state to enact the common civil code throughout the but till date no action has been taken in this regard.
  2. The Hindu personal laws have been modified but there has been no attempt to frame a uniform civil code for the citizens of the country.  
  3. Even after the conclusions made and the judgments delivered in the case of Shah Bane in 1985[2], there has nothing been done to enact a common law for all.
  4. The Supreme Court has enshrined the state of Goa as a ‘Shining Example’ where Uniform Civil Code has been implemented for every religion while protecting certain limited rights.

“Goa as a shining example”

Goa has a common civil code for all which follows the Portuguese civil code 1867.  It includes certain provisions:

  1. A Muslim man residing in the state of Goa who has registered marriage in the state cannot practice polygamy.
  2. If a married couple share property equally, in a pre-nuptial order the assets are divided equally between man and woman on divorce.

Personal laws

The laws that are applicabe to a certain class or group of people based on their religion, faith and culture are the personal laws. In a country like India, there are many religions and the people belong to different castes, having their own faith and belief. The set of laws prescribed for their religion is based on their belief. These laws were made considering the customs followed by the people and their religion. In India, people follow these laws since colonial period. Earlier the British had implemented these laws as they were a foreign Nation and it was an approach to prevent any kind of protests that they could have faced by imposing a common civil code for all.

The main subjects of personal law were marriage, divorce and maintenance. The Hindu law, initially had a lot of discrimination towards the women. But later, with the actions and voices raised against, they were largely modified and secularized by the statutory enactments. It was codified by the parliament in 1956 . It was applicable to Sikhs, Jains and the Buddhists too. The Hindu code bill has been split in four parts:

  1.  The Hindu Marriage Act, 1955
  2. The Hindu Succession Act, 1956
  3. The Hindu Minority and Guardianship Act, 1956
  4. The Hindu Adoption and Maintenance Act, 1956

The Muslim personal laws are unmodified and has a traditional approach in their content and laws. They have not been changed considering the opposition. The Muslim laws are governed by the Shariah Law of 1937. There hasn’t been much change in those laws. There are only some enactments till the date. The law clearly states that in the matters of personal disputes, the state shall not interfere and a religious authority would pass a declaration on the basis of interpretation of the Quran and the Hadith.

The Christian and Jews apart from these have their own personal laws.

Are the personal laws Fault-less?

The Supreme Court has recently declared the act  triple-talaaq as illegal which is a big step towards the gender equality and has raised a question on religion-based personal laws in the country.

Thirty-two years ago Shahnaaz Shaikh filed a public interest litigation (PIL) challenging the triple talaq provisions as she was given divorce by her husband at midnight, which acquired attention. The petition stated that Sharia law had given unequal rights to the Muslim women by imposing purdah, also allowing polygamy and the unilateral divorce and depriving the divorced Muslim women of maintenance rights.

The women activists had soon discovered that this kind of discrimination existed for all the personal laws,and all the religions. For instance, the hindu daughters were also deprived of the property rights. They were not entitled to their patriarchal property. After Lata Mittal filed a case in 1985 and won a 20-year legal battle in the Supreme Court was only that Hindu daughters were provided equal rights in the ancestral property.

Similarly, the Christian women were not allowed to divorce their husbands on the claim of adultery committed by their husbands. But on the other hand the Christian men could simply pronounce their wives as adulteress and issue a divorce. It was only a few years ago that the proposal to amend the Christian divorce act, 1869 was accepted.

[1] (1995) 3 SSC 635.

[2] 1985 AIR 945, 1985 SCR (3) 844

Should commercial surrogacy be banned in India?

Commercial surrogacy is the process by which an individual or couple pays a fee to a woman in exchange for her carrying and delivering a baby. At birth the child, homo-sexual couples, and single people who wish to be parents are the most common types of people who seek surrogate mothers.

Commercial surrogacy has been legal in India from 2002 onwards but due to unethical practices, a bill has been approved by the Union Cabinet in August 2016. This one lapsed when Parliament adjourned without taking the measure for a vote.

The new proposal came in 2019 that is to ban commercial surrogacy. The Indian minister of health has called the 2019 bill a “need of the hour” citing a rough estimate that between 2000 to 3000 unregulated clinics currently operate in the country. Under the new law anyone who performs or promotes this would be punished with up to 10 year of imprisonment and a fine up to one million rupees. The surrogacy bill’s provision restricting surrogacy to married heterosexual couples within strict age ranges also discriminates against members of L G B T community, older couples and unmarried people who might seek to have a child. The bill goes against the principles of equality provided under Article 14 of the Indian constitution.

Regulation, not ban, is needed. The commercial surrogacy in India needs a regulation and stricter rules that could ensure good care and pay to the woman alone and not agents or others. Good clinical facilities for the surrogate mother and a healthy environment where she could stay safely before and after delivery could lessen exploitation. There is no provision in the law about the custody of the child if the couple later refuse to accept it if the child is mentally challenged or born with a defect. People who hire surrogates have a need to do so due to medical reasons. It is not their choice. Regulation on this practice is very much needed and must be done to close loopholes due to which exploitation of surrogate mothers is taking place.

Indian society is yet to progress so much as to accept surrogate motherhood. The woman who rents her womb even if for the cause of humanity towards an unfortunate couple will never be accepted in society when she goes back to her normal life. People will look down on her and she may probably not be able to find a husband, if she was unmarried at the time of surrogacy. We need to be broad-minded and accept these women and respect their choice of renting their wombs.

Giving women a safe and free environment for surrogacy can help in curbing the evils attached and the industry could do well along with giving good money to such poor women so that they can make their lives better as well as give prosperity to their families.

Thank you for reading. Have a nice day!

HUMAN RIGHTS JURISPRUDENCE ‘THE INDIAN CONCEPT’

INTRODUCTION

A right is not a claim or demand but something which is not wrong. Natural Rights Theory as propounded by John Locke calls rights as pre-political which were available to man in his state of nature. These three human rights of life, liberty and estate were ensured to individuals by virtue of the ethical code of mutuality and moral order. The effort to safeguard, protect and promote basic Human Rights continues in every generation in every civilization. New rights arise from the roots of the old. Today we have broadened the field of Human Rights thought and action to new areas and population. The development of Human Rights and then recognition and protection is done with the support of Jurisprudence.

WHAT ARE HUMAN RIGHTS?

“The core of human rights discourse is that it is a right to which only human beings are entitled, which gives meaning to the essence of humanity, and without which humanity necessarily loses those special attributes that make it human”. Ajomo had earlier defined human rights in similar terms inter alia: “human rights are inherent in man; they arise from the very nature of man as a social animal. They are those rights which all human beings enjoy by virtue of their humanity”.

According to Joel Feinberg, “Human Rights as moral rights held equally by all human beings, unconditionally and unalterably” For Feinberg Human Rights are moral claims based on primary human needs.[1]

 Human rights are those liberties, immunities and assistance by which, through accepted contemporary values, all human beings should be able to demand the rights in the society which they live.

Human Rights are inherent rights which are made for protection, safeguard and development of humans all over the world and these rights cannot be waived off on someone’s will or whim. As said by some American Attorney, “If you remove them from any human being, he will become less than human. They are part of the very nature of a human being, and attach to all human beings everywhere in all societies, just as much as do his arms and legs.”

Human Rights are also defined as moral rights which every human being ought to have every time and everywhere which contrasts a being as moral and rational than the other. In other words, idea of human rights familiarize with morality and rationality but can be said as limitation or challenge to this definition, are new born, infants, juvenile, lunatics. These humans have rights but they lack sense of morality and rationality.

WHAT IS JURISPRUDENCE?

Jurisprudence originated from the Latin word ‘Juris-prudentia’, whereby ‘juris’ means law and ‘prudentia’ means skill or knowledge. Therefore, jurisprudence is skill or knowledge of law and its application. It covers the whole body of legal principles in the world. It deals with those relations of human and society which are regulated by law. It is a normative evaluation of basic legal values and ideas which impart validity and recognition to legal system.

 It is conceptional analysis between law and socio-political society, which provides significance to the legal system. Rapid changes in this progressive society has given birth to new issues and dynamic law, has lead to evolution of jurisprudence. In other words, evolution of society brings changes in the law to tackle the problems through pragmatic approach has given rise to functional jurisprudence i.e. law and justice.

Professor Gray defined, “Jurisprudence more or less in the same manner. He opined that jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in these rules.”

HUMAN RIGHTS JURISPRUDENCE

Human rights are described as inalienable, fundamental, God-given etc. the basic purpose is that these rights are not created by constitution and other codes or any supreme authority but they have to declare and preserve those rights. This can be also said as human rights can exist as shared norms or human moralities which are supported and protected by strong reasons or as legal rights of a person.

Incidentally, human right generate from the realistic insight of ancient and medieval humanism. In the classical literature of
Prehistoric Greece from 5th century B.C. we come across a striking expression of the belief in the power exercised by the gods on human community which was based on law. According to the Ancient Greece writers, the god establishes a law which stand above the duties and prohibitions imposed by the rules of the community.

In Roman law there was dissimilarity between national law (jus civile) and the common law to all nations (Jus gentium). ‘Jus natural’ was the law of nature which is fixed and unchallengeable, higher to all human laws derived from the dictates of right reason.

In middle ages, a number of Acts were enacted to show the superiority of Human Rights. The principle of the Habeas Corpus Acts latent in the 39th clause of Magna Carta was acknowledged already in 1188 by Alfonso IX. Charters of liberty are steps towards the realization and implementation of Human Rights. Magna Carta of 1215, Petition of Rights of 1628; Habeas corpus Act of 1679, Bill of Rights of 1689 are some of such steps taken in England.

THE INDIAN CONTEXT

According to D.D. Basu, “Human Rights as those minimal rights which every individual must have against the State or other public authority by virtue of his being a member of the human family, irrespective of any other consideration”[2]

Development of jurisprudence and legal theory in India owes as much to ancient hindu legal thinkers as it owes to western jurists and legal philosophers. The ancient Indian legal thinkers expounded their own indigenous legal system which was based on sound principles of reasoning and human wellbeing and excelled in many respects from other legal systems of the world. Commenting on ancient Indian jurisprudence, Mayne observed:

“Indian law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude. At this day it governs races of men, extending from Kashmir to Capecomorin, who agree in nothing else except their submission to it.”

ANCIENT HUMAN RIGHTS JURIPRUDENCE

The positive law embodies certain values which holds universal validity, like Dharma (righteousness), Artha (wealth), Kama (desires), Moksha (salvation) were expounded by ancient Indian philosophers and thinkers years ago with a view to establish a cordial social order by striking a balance between inner and outer, spiritual and material aspect of life.

“Dharmasastras” and the “Arthasastras” and other legal treatises of the history have revealed an incredible system, which regulates the duties of Kings, judges, subjects and judicial as well as legal procedures. The ancient concept of Dharma enabled citizens to inculcate sense of discipline in conducting themselves in society. The message is “Dharma” as the absolute value, which fastens kings and citizens, men and women.

Human rights achieve meaning only when there is an independent judiciary to enforce rights. The administration of justice always remained separate from the executive; it is as a rule independent in structure and spirit. It was the Hindu judicial system that first realized and acknowledged the significance of the separation of the judiciary from the executive and gave this fundamental principle a realistic shape and form. The case of Anathapindika v. Jeta descript in the monastic rules of vinaya pitaka,’ is an unblemished demonstration of this principle. According to it, a Prince and a private citizen submitted their cases before court of law and the court decided against the Prince. The Prince accepted the decision as a matter of course and as binding on him. The evolution of the principle of separation of the judiciary from the executive was largely the result of the Hindu conception of law as binding on the sovereign.

As Nagendra Singh remarks, “The individual in ancient India existed as a citizen of the State and in that capacity he had both rights and obligations. These rights and duties have largely been expressed in terms of duties (Dharma) – duties to oneself, to one’s family, to other fellowmen, to the society and the world at large. The basis of ancient human rights jurisprudence was Dharma – the ideal of ancient Indian legal theory was the establishment of socio-legal order free from traces of conflicts, exploitations and miseries. Such a law of “Dharma” was a model for the universal legal order.”[3]

MODERN HUMAN RIGHTS JURIPRUDENCE

With the progress of Indian Society, Constitution of India came into force on 26th January 1950 with 395 Articles and 8 Schedules which is one of the most elaborate fundamental laws ever adopted. The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term ‘democratic’ signifies that the Government gets its authority from the spirit of the people. It gives a feeling that they all are equal “irrespective of the  race, religion, language, sex and culture.” The Preamble to the Constitution pledges justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the dignity of the individual and the unity and integrity of the nation to ail its citizens. With this evolution citizens are also expected to be self restrained and self disciplined and also conscious about their rights and duties.

The Indian Constitution in its Chapter Third envisaged seven fundamental rights with several Directive Principles for the establishment of a welfare polity in India. The 44th Amendment reduced them to six and accepted right to property as a mere legal (not fundamental) right of the citizen.

Similarly, several directives have been accepted as fundamental in the governance of the country. The rights to information, primary education and pollution free environment have come on the periphery of fundamental rights. As democracy matures in India, the judiciary is increasingly insisting on the development of human rights jurisprudence and the legal implementation of social legislation for the attainment of human rights in India.

Protection of Human Rights Act, 1993 there are certain legislations which directly or indirectly protect the Human Rights and Fundamental Freedoms of mankind in multidimensional approach. All these are in accordance with the mandate of Human Rights instruments as well as in accordance with the Constitutional provisions.

The Indian Constitution is a document rich in human rights jurisprudence. This is an elaborate charter on human rights ever framed by any State in the world. Part 3 of the Indian Constitution may be characterized as the ‘Magna Carta’ of India. The Judiciary in India plays a significant role in protecting human rights. The Indian Courts have now become the courts of the poor and the struggling masses and left open their portals to the poor, the ignorant, the illiterates, the downtrodden, the have-nots, the handicapped and the half-hungry, half-naked countrymen.

CONCLUSION

The concept of Human Rights Jurisprudence in India is prevalent from the ancient time and continues. There are certain legislations, which directly or indirectly protect the Human Rights and Fundamental Freedoms of humankind in multidimensional approach. All these are in accordance with the consent of Human Rights instruments as well as in accordance with the Constitutional Provisions.

[1] Joel Feinberg, “Social Philosophy”, 1973, Prentice Hall, N.J p. 85

[2] D.D Basu, “Human Rights in Constitutional Law”, 1994, Prentice Hall, Delhi, p. 5

[3] S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Allahabad: Central Law Agency, 1992) Pg.79.

ACCOUNTABILITY OF ELECTION COMMISSION

Keywords:

Election Commission of India ~ Constitution of India ~ Article 324 ~ Supervision ~ Direction ~ Control ~ Accountability

Introduction:

The Election Commission of India is a central, state and district autonomous statutory body responsible and accountable for overseeing electoral process in India. The board administers Lok Sabha, Rajya Sabha elections, state assemblies, state legislative councils and president and vice president of the nation. Under Article 324 of the Constitution, the Election Commission does its work, and the Representation of the People Act has been subsequently enacted under it.

The commission has the strength and supremacy, under the Constitution, to engage in behaviour appropriate to the extent, when the enacted laws make insufficient provision for dealing with a given situation in the conduct of an election. As a constitutional body, the Election Commission is one of the limited bodies that operate with both sovereignty and independence, along with the nation’s higher judiciary, the Union Public Service Commission, and India’s Controller and Auditor General.

What is Election Commission of India?

The Election Commission of India (ECI), which was formed in 1950 to promote democratic process in India, is a constitutionally approved body. The headquarters are situated in New Delhi. It consists of three members namely, the Chief Electoral Commissioner and two other Commissioners who are designated by the president of India for a term of six years and who cannot be removed from office except through a parliamentary indictment. The ECI, while almost invulnerable to political pressures and scrupulously neutral, is tasked with ensuring free and fair elections.

The Indian Election Commission is the governing body of the election. The Election Commission of India (ECI) is envisaged by Article 324 of the Constitution of India. It defines the code of conduct for election model in the country.

The Constitution under Article 324 provides for the planning, conduct and supervision for elections to the legislature, the state governments and the president and vice-president offices by the Election Commission. Therefore, both the central and the regional elections are the responsibility of the Election Commission. It is also responsible for preparing, maintaining and updating the electoral rolls, raising political funds, registration of political parties, nomination of candidates, monitoring of campaigns, accelerating media, arranging and organising polling booths, superintending the vote counting and result declaration. The ECI is convincing and determined in matters of elections—for instance, where the law is ambiguous—but it can be challenged in courts of law.

In the early 21st century, the Indian general elections became the world’s biggest democratic exercise. In a number of geographical, political and climate ways, they involved nearly 700 million voters in some 700,000 polls. The ECI functions through a secretariat of some 300 staff members. Each state has a Chief Electoral Officer with a core staff, and civil servants assume the responsibilities of election officials at the district and electoral levels. However, during the general election, an enormous team of temporary workers up to five million people are responsible for the conduct of the poll.

Superintendence, Direction, Control and Accountability for Elections

In Article 324, the term superintendence, direction and control and the conduct of all elections were kept to include certain powers which, although not expressly given, are required to be exercised in order to effectively fulfil the task of holding the elections at their completion. Furthermore, it would be appropriate for the Commission to make general provisions on matters pertaining to symbols, either in anticipation or in the light of practice.[1] For the purpose of free and fair elections and for the protection and security of electors and with a view to avoiding bullying and victimization of electors, the Commission has full authority to guide the way in which ballots are counted and is accountable for the measures taken during the due process.[2] For transfer of those officers (who had completed more than four years of stay in one district) from one district to another, directives are issued by the Election Commission, were adopted pursuant or intra vires to Article 324.

The text conduct of the elections referred to in Article 324 was considered to be broad in scope, which would include the power to make all the necessary arrangements for the conduct of free and fair elections. As every contingency cannot be acknowledged or anticipated beforehand, the Supreme Court in Union of India v. Association for Democratic Reforms[3], held that the Commission could cope with a situation in which the field had not been occupied by issuing the necessary orders. Article 324 was said to be a reserve of power, giving the Commission its own right to exercise residual authority a creature of the Constitution. The Commission may, therefore, issue instructions asking the candidates to provide information on their assets, their educational qualifications, the background of their lives, etc. Nevertheless, the terms ‘superintendence, direction and control in Article 324 are intended to complement and not replace the law and, therefore, the Commission cannot move against a validly formed electoral law. No power to de-register a political party shall also be bestowed on the Election Commission. Moreover, with the approval of the State, the Commission may control any legal issue not protected by the Rules of Procedure set out in the Legislature.

In the case of Ram Deo Bhandari v. Election Commission[4], the Supreme Court held that the Election Commission was free to take such measures as it deemed appropriate to ensure a free and fair vote, but would not withhold the elections to the Legislative Assembly of a State on the ground that it had failed to complete the process of issuing photo identity cards within the time limit prescribed by the Commission, for it would be contravention of the mandate of Article 168 of the Constitution.

In the case of J.T. Girls Degree College v. State of U.P.[5], it was ruled that the Election Commission and the Election Authorities are both controlled by the 1951, Representation of People Act, and cannot act in a manner inconsistent with the Act. It is also recommended that Article 324 should be read in the context of the Constitutional Scheme and the Act of 1950 and of 1951. In A.C. Jose v. Sivan Pillai[6], some significant errors in the use of EVM had been identified by the Supreme Court. Since these deficiencies had been taken care of by the new improved version of EVM as well as by the Representation of People Act, 1951 and the Rules there under were modified accordingly.

Some Issues for which ECI has to be Accountable

  • The presence of money and criminal elements in politics has risen over the years, along with intimidation and political corruption resulting in elections being criminalized. The ECI could not stop the deterioration.
  • A blatant misuse of power has occurred by the state government, which often makes large-scale transactions on the eve of elections and posts malleable officials in key positions, often employing official vehicles and electioneering buildings, in violation of the ECI model code of conduct.
  • The ECI is not properly prepared to control the parties. The ECI does not have the authority to impose internal party control and to govern party finances.
  • Throughout the past few years, there has been a growing perception that the Election Commission is becoming increasingly independent of the executive that has damaged the institution ‘s reputation.
  • One of the main institutional drawbacks is the lack of accountability in the election of the CEC and two other commissioners and the choice of the presiding government.
  • EVMs have been reported to be malfunctioning, to be hacked and not to record votes that corrode the confidence of the institution of the general masses.
  • Loss of structural governance as a result of decreasing democratic morality norms and deteriorating service ethic and commitment in public life.
  • An inefficient and lengthy judicial method of managing electoral requests, frequently making the whole method meaningless.

Conclusion:

Through the years, a range of commendable electoral reforms have been carried out by the Election Commission to improve democracy and improve the fairness of the elections. These changes are admirable and equally sufficient. Under the EC’s auspices, the election machinery certainly deserves plaudits for free and fair conducting of elections. So many vices still torment our framework. Political parties turn to irrational tactics and unethical practices to win votes. These diseases promote entry of the anti-social elements into the electoral competition. The question is not the lack of legislation but their lack of rigid compliance and enforcement. There is a need to strengthen the EC’s hands and give it more legal and institutional power and authority to root out those unjust tendencies. The EC must be granted powers to discipline the errant politicians who are transgressing and breaching the voting process and code of conduct.

Frequently Asked Questions (FAQ’s):

Q.1. What are the advantages of using EVM’s?

A.1. Electronic Voting Machines (EVM’s) have been widely used in important constituencies in restricted areas and also, in by-elections. Throughout the Goswami Committee deliberations, any questions regarding this technology were amply removed. Not only were the EVMs satisfactorily demonstrated to all representatives of parliament, but many electronic experts from the Indian government also testified that the devices could be used without any lingering doubts at all the elections. The benefits of EVMs are very evident in preventing large-scale rigging as the system locks up and will allow just one hit every several seconds. Wherever such EVMs were used in urban and rural areas, there were no large-scale rigging reports.

Q.2. What are successes and failures of ECI?

A.1. Thirteen general elections to Lok Sabha and a much greater number to various State Legislative Assemblies have been held over the last half-a-century. We should take genuine pride in the fact that these were successful and widely accepted as free and equal. But the experience has also brought many misconceptions to the fore, some very severe, which in many quarters has created a profound concern. Links to the toxic position of financial influence, muscle strength, and mob control and criminalization, racism, communitarianism, caste system and corruption are frequent.

[1] K.M. Sharma v. J.B. Singh, AIR 2001 All. 175.

[2] E.C. of India v. Ashok Kumar, AIR 2000 SC 2979.

[3] AIR 2002 SC 2112.

[4] AIR 1995 SC 852.

[5] AIR 2004 All. 267.

[6] AIR 1984 SCR (3) 74.

Distinction between the Writ of Prohibition and the Writ of Certiorari

The writ of Prohibition is issued to prevent the decision or administration action in the process, so that it cannot proceed further, while the Writ of Certiorari is issued to quash the decision already given.

Both the Writs are similar in many aspects. Both are issued by the superior court to the inferior court or Tribunal or body exercising judicial or quasi- judicial functions on similar grounds.

However, the main difference between the writs are as follows:

Writ of ProhibitionWrit of Certiorari
When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the supreme court for a Writ of Prohibition and on that an order will be issued forbidding the inferior court from continuing the proceedings.When the inferior court hears the cause or matter and gives a decision on a case over which it has no jurisdiction over, the party aggrieved shall have to move to the Supreme court for a Writ of Certiorari on which an order will be made quashing the decision of the inferior court., 
It is issued before the proceedings are completed.2.  It is issued after decision is given         by an inferior court or Tribunal or any body exercising judicial and quasi-judicial functions, exceeding its jurisdiction.
The object of the Writ of Prohibition is prevention rather than cure.      3.  The Writ of Certiorari is rather used as a cure by quashing a decision already given by the inferior court.
Prohibition lies only against judicial or quasi- judicial bodies.4. while Certiorari lies against a public authority which acts purely in an executive or administrative capacity or to a legislative body along with judicial and quasi- judicial bodies.

Case law –

1.Hari Vishnu Kamath v Ahmad Ishaque

In the above case supreme court held that in cases where there is a requirement for prayer of certiorari as well as prohibition and the in the application not prayer of certiorari has been made then it would be open to the court to issue the writ and stop further proceedings which are affecting the decision. But in this case the proceedings have ended then seeking for prohibition will be too late and writ of certiorari must be a proper remedy for quashing. Clearing on the point it was also held that writ of prohibition will lie when the proceeding is pending to a large extent and writ of certiorari will be issued when then case has been terminated in a final decision.

2.  Bengal Immunity Co. v State of Bihar

 It was observed by the Supreme Court that the existence of an alternative remedy, that is adequate and equally effective remedy may be a matter that can be taken into consideration by the High Court in granting the writ. It is a writ of right not a discretionary writ and nature of writ of prohibition is much of corrective one rather than preventive. Presence of an alternate remedy does not impose an absolute bar on issuing writ of prohibition. But presence of an alternate remedy will be more relevant in context of certiorari.

   CONCLUSION:

The procedure ordinarily followed by the Supreme court or  High Court while exercising the certiorari jurisdiction is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior court has committed any of the preceding errors occasioning failure of justice. After adjudging the case in refer­ence to the objection raised the court may pass an appropriate order which may include quashing of proceed­ings at subordinate court or tribunal, as the case may be.

Often a writ of certiorari is sought along with a writ of prohibition, so as to ensure that the invalid act is not only reviewed by a superior court, but its operation is restrained as well.  

Prime Minister mentions in his ‘Mann Ki Baat’ broadcast Nation to read Preamble

The yearlong nationwide activities on Constitution Day are being launched to mark the 70th anniversary of the adoption of the Indian Constitution by the Constituent Assembly, beginning November 26, 2019. The day 26th November is celebrated every year as Constitution Day (also known as ‘Samvidhan Divas’). These activities aim to reiterate and reorient the citizens towards the values and principles expressed in the Indian Constitution and encouraging all Indians to play their rightful role in strengthening the Indian Democracy.

 

Various sections of the society will do a mass reading of the Preamble to the Constitution at 11:00 am on the Constitution Day. Like every year, each Ministry/ Department/ Organisation will take up a mass reading of Preamble of the Constitution to mark the occasion. Talks, discussions and seminars will also take place all over the country on the Constitution Day.

 

 

 

The aim is to publicize the glorious and rich composite culture and diversity of our nation. Further, it aims to create awareness of Fundamental Duties as enshrined in the Indian Constitution. As citizens of our great nation, we believe firmly in Gandhian thought that ‘The true source of rights is duty. If we all discharge our duties, rights will not be far to seek’ and as said by Sardar Patel, ‘Every Indian should forget that he is a Rajput, a Sikh, or a Jaat. He must remember that he is an Indian and he has every right in his country but with certain duties’.

 

 

 

The activities on Constitution Day will see participation and cooperation from all Ministries/ Departments at the Centre/State, Autonomous Bodies/Public Sector Undertakings, Armed Forces and Central Public Organisations etc. Further to make it a peoples’ movement, the Prime Minister, Shri Narendra Modi has interacted with the entire nation through ‘Mann ki Baat’ on November 24, 2019. The President of India, the Vice President of India, the Prime Minister, the Speaker of Lok Sabha, the Minister for Law & Justice and all Members of Parliament will participate in a special function being organized in the Central Hall of the Parliament on the Constitution Day. A Digital Photo Exhibition will be inaugurated and a Portal on Youth Parliament Scheme will also be launched on this occasion. As mark of solidarity and an appeal to citizens of India to exhort their contribution during the campaign, an electronically signed Pledge by the Prime Minister be rendered to the public at large.

 

Non-fare Revenue and FDI in Indian Railways

Several steps have been taken to increase non-fare revenue of Indian Railways by monetization of land and other assets. These include:

i. Policy for leveraging Mobile Assets, Out of Home Advertising, Rail Display Network, Unsolicited proposals and Content on Demand.

ii. Commercial utilization of vacant land through Rail Land Development Authority (RLDA).

Government of India has permitted 100% Foreign Direct Investment (FDI) on automatic route in the following activities/areas of Railway Infrastructure:

i. Suburban corridor projects through Public Private Partnership.

ii. High speed train projects.

iii. Dedicated freight lines.

iv. Rolling stock including train sets, and locomotives or coaches manufacturing and maintenance facilities.

v. Railway Electrification.

vi. Signalling systems.

vii. Freight terminals.

viii. Passenger terminals.

ix. Infrastructure in industrial park pertaining to railway lines or sidings including electrified railway lines and connectivities to main railway line.

x. Mass Rapid Transport Systems.

Foreign Direct Investment in these areas is subject to sectoral guidelines, which include necessary safety certification from central government or its authorized entity. The FDI policy is also open for U.S. businesses.

In order to give a facelift to the Indian Railways and cater to diverse needs of passengers, some of the steps taken include:

i. Significant step-up in investment for capacity enhancement, Safety and Modernization of Railways.

ii. Improvement and upgradation of various passenger amenities like foot over bridges, lifts, escalators, toilets, battery operated vehicles, wheel chairs, waiting rooms.

iii. Leveraging information technology for online ticketing and enquiry services.

iv. Introduction of various premium train services like Humsafar, Tejas, Antyodaya, Utkrisht Double Decker Air-conditioned Yatri (UDAY), Mahamana and coaches like Deen Dayalu and Anubhuti.

This information was given by the Minister of Railways and Commerce & Industry, Shri Piyush Goyal in a written reply to a question in Lok Sabha today.

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Lok Sabha passes the Special Protection Group (Amendment) Bill, 2019

The Lok Sabha passed the Special Protection Group (Amendment) Bill, 2019, after negating all the proposed amendments today.

Initiating the debate on the Special Protection Group (Amendment) Bill, 2019 today in the Lok Sabha, Union Home Minister Shri Amit Shah said that SPG shall provide proximate security to the Prime Minister and his immediate family members residing with him at his official residence. The Bill says that family members of a former Prime Minister who reside with him at his allotted accommodation will get security cover of the SPG only for five years, from the date he/she ceases to hold the office of Prime Minister.

Special Protection Group (Amendment) Bill, 2019
Special Protection Group (Amendment) Bill, 2019

Replying to the debate, the Home Minister noted that there is a perception in the country that the amendment in SPG Act is only for the purpose to remove the SPG security cover for the Gandhi family. Contrary to this, the change of the security cover has been done only on the basis of yearly security threat perception review by the government. Such a security review has been a part of the original act, he added.

Shri Shah emphasized that the security cover of the Gandhi family has not been reduced or taken away, rather it has just been changed from SPG cover to Z Plus security cover by the CRPF, along with ASL and ambulance, across the country. The level of the security cover has been maintained and not even one security personnel has been reduced. He also said that the SPG security cover is being formed by the same security personnel who comprise of the Z plus security cover.

Shri Shah informed that based on the recommendations of the Birbal Nath committee report, SPG came into existence in 1985. From 1985 to 1988, SPG was governed by an Executive Order and only in 1988 the SPG Act came into existence to provide security to the Prime Minister and his/her family.

Shri Shah said that the SPG Act was enacted in 1988 to provide for the constitution and regulation of the SPG as an armed force to provide proximate security to the Prime Minister and his/her immediate family members. Amendments to the Act were effected in 1991, 1994, 1999 and 2003 and today a further amendment is being brought to revert back to the original spirit of the Act.

Shri Shah stated that the previous amendments to the 1988 Act have been carried out each time to provide security cover only to one family. According to the original Act, SPG is a specialised force to provide comprehensive security cover to the Prime Minister of the country and not a particular family. SPG doesn’t only provide physical security, but it takes care about protection of Prime Minister’s office, his/her communication systems, foreign tours and issues pertaining to his/her health and well being.

Dismissing the charge of vindictiveness for removal of SPG cover of Gandhi family, Shri Shah stated that such security cover reviews have happened in the past with respect to ex prime ministers, including Shri P.V. Narasimha Rao, Shri I.K. Gujaral, Shri Chandra Shekhar, Shri H.D. Deve Gowda and Dr. Manmohan Singh, but there was no such opposition ever when SPG cover was withdrawn. The Home Minister said that the Government is committed to secure each citizen of the country.

Shri Shah further stated that the Modi government never takes decision of providing security cover on the basis of vendetta politics but on scientific threat analysis for a particular individual. He also said that security cover has been provided to members of all political parties based on individual case based threat analysis. Security cover must not be treated as a status symbol by individuals. The security cover meant specifically for the Prime Minister, must not be enjoyed by any other individual. Moreover, the three protectees of the Gandhi family who have been specially mentioned here, have been on many trips without informing SPG, the Home Minister pointed out.

Talking about the rationale behind bringing the amendment, Shri Shah informed the House that in the Act, there is no cut off period for providing the SPG protection to former Prime Ministers or members of their immediate families. Thus, the number of individuals to be provided SPG cover can potentially become quite large. In such a scenario, there can be severe constraint on the resources, training and related infrastructure of SPG. This can also impact the effectiveness of SPG in providing adequate cover to the principle protectee, the Prime Minister in office.

Shri Shah said that the main aim of bringing this amendment is to make SPG more efficient. This would ensure that no omission happens in carrying out its core mandate, as the security of the Prime Minister, as Head of the Government, is of paramount importance for Government, governance and national security. The Bill says that when the proximate security is withdrawn from a former Prime Minister, such proximate security shall also stand withdrawn from members of his or her immediate family.

 

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