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1 INTRODUCTION ............................................................................................................................................................. 3
2 ORIGIN .............................................................................................................................................................................. 3
3 DEFINITIONS................................................................................................................................................................... 3
3.1 TRADITIONAL (CLASSICAL) APPROACH ................................................................................................................................... 4
3.1.1 Montesquieu’s strict doctrine (tripartite system) .....................................................................................................4
3.1.2 Summary of doctrine ..............................................................................................................................................................4
3.2 MODERN (CONTEMPORARY) APPROACH ................................................................................................................................. 5
3.3 MARXIST-LENINIST APPROACH ................................................................................................................................................. 5
4 DOCTRINE OF SEPARATION OF POWERS IN INDIA ........................................................................................... 5
4.1 CONSTITUTIONAL POSITION....................................................................................................................................................... 6
4.1.1 Separation of powers ..............................................................................................................................................................6
4.1.2 Functional Overlap ..................................................................................................................................................................6
4.2 JUDICIAL PRONOUNCEMENTS ON THE DOCTRINE IN INDIA .................................................................................................. 7
4.2.1 re Delhi Laws Act case............................................................................................................................................................7
4.2.2 KesavanandaBharti case ......................................................................................................................................................8
4.2.3 Indira Nehru Gandhi v. Raj Narain ..................................................................................................................................8
4.2.4 Other cases...................................................................................................................................................................................8
4.3 CHECKS AND BALANCES .............................................................................................................................................................. 8
4.4 JUDICIAL REVIEW......................................................................................................................................................................... 9
5 SEPARATION OF POWER IN OTHER COUNTRIES ............................................................................................ 10
5.1 SEPARATION OF POWER IN USA ............................................................................................................................................ 10
5.2 SEPARATION OF POWER IN ENGLAND................................................................................................................................... 10
5.3 SOME OTHER COUNTRIES ........................................................................................................................................................ 11
6 CONCLUSION ................................................................................................................................................................ 11
1 INTRODUCTION
“Power corrupts and absolute Power tends to corrupt absolutely”
We know that it the government’s role to protect individual rights, but governments have historically been the major
violators of these rights. Thus, a number of measures have been derived to reduce this likelihood. The concept of
Separation of Powers is one such concept. The basic assumption behind this is that when a single person or group has
a large amount of power, they can become dangerous to citizens. The Separation of power is a way of removing the
amount of power in any group’s hands, making it more difficult to abuse.
The doctrine of separation of power claims that state power is not a single entity but rather a composite of different
governmental functions (i.e. legislative, executive, and judicial) carried out by state bodies independently of each
other. The legislature enacts laws; the executive enforces laws; and the judiciary interprets laws.
This idea of separation of functions stems from the logical conclusion that if the law-makers should also be the
administrators and dispensers of law and justice, then the people at large will be left without a remedy in case any
injustice is done as there will be no superior authority.
The value of this doctrine lies in that it attempts to preserve human liberty by avoiding the concentration of powers in
any one person or body of person. As stated by Madison- “The accumulation of all powers, legislative, executive and
judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may
justly be pronounced the very definition of tyranny.” And for the prevention of this tyranny, the doctrine of separation
of power holds its greatest importance.
2 ORIGIN
The theory of separation of powers may be traced back in the writings of classical and medieval thinkers such
as Aristotle (384–322 BC). For instance, Aristotle in his book (“The Politics”) proclaimed that:
There are three elements in each constitution in respect of which every serious lawgiver must look for what is
advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in
constitutions are bound to correspond to the differences between each of these elements. The three are, first, the
deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.
Further, Aristotle believed that any single form of government was unstable leading to a permanent cycle of disasters.
In the same vein, Cicero preferred powers to be vested in the people and authority in the state. Apart
from Aristotle and Cicero, other thinkers who rebelled against concentrating powers in one absolute leader were John
Locke and Jean Bodin. For instance, Locke stressed that the executive and legislative powers should be separate for the
sake of liberty. As liberty is likely to suffer when the same human being makes the law and execute them.
Such thinking during the Age of Enlightenment (reasons) in Europe were refined and reformulated as a doctrine in the
mid-18th Century by the celebrated French philosopher, Charles de Secondat, Baron de Montesquieu (1689-1755)
in his book, “De l’Esprit des Lois” (i.e. the Spirit of Laws), 1748.
Between 16-18th Centuries, the doctrine of separation of powers occupied an upper hand in the struggle of the
bourgeoisie against absolutism and the arbitrary rule of kings (i.e. feudal monarchy). Again, the doctrine was used in a
number of countries to justify a compromise between the bourgeoisie, which had won control over the legislature and
judiciary, and the feudal-monarchical circles that had retained executive power. With the establishment of the
capitalist system the principle of separation of powers was proclaimed as one of the fundamental principles of
bourgeois constitutionalism.
3 DEFINITIONS
The phrase ‘separation of powers’ is ‘one of the most confusing in the vocabulary of political and constitutional
thought’. According to Geoffrey Marshall (1971:97), the phrase has been used ‘with varying implication’ by
historians and political scientists, this is because the concept manifests itself in so many ways. In understanding the
concept of ‘separation of powers’ one has to take on board the three approaches i.e. traditional (classical), modern
(contemporary) and Marxist-Leninist approaches.
The traditional views are presented by Montesquieu who vigorously advocated for a “strict or pure or total or
complete or absolute” separation of powers and personnel between three organs of the state i.e. the Executive,
Legislature and Judiciary.Power being diffused between three separate bodies exercising separate functions with no
overlaps in function or personnel.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there
can be no liberty……….Again, there is no liberty if the power of judging is not separated from the legislative and
executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave
with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of
the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs,
and that of trying crimes or individual causes.
• Institutional separation of powers: (a tripartite separation of powers) – the need to have three major
institutions or organs in a state i.e. Legislature, Executive and Judiciary.
• Functional separation of powers: state power/functions must be vested and exercised by three separate
institutions or organs i.e. law making, enforcement and interpretation.
• Separation of personnel: (each organ with own personnel) – no person should be a member of more than one
organ.
• Limitation of appointing powers: state organs should not appoint or elect members for each other.
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This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of separation of powers.
Essentially, this approach point out practical difficulties in the application of Montesquieu’s strict doctrine and thus
advocates for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’ to prevent abuses.
Therefore, this concept insists that the primary functions of the state should be allocated clearly and that there should
be checks to ensure that no institution encroaches significantly upon the function of the other.
• A complete separation of the three organs may lead to constitutional deadlock (disunity of powers). Thus, a
complete separation of powers is neither possible nor desirable.
• Partial separation of powers is required to achieve a mixed and balanced constitutional structure.
• It would be impractical to expect each branch of government to raise its own finances.
• The theory is based on the assumption that all the three organs of the government are equality important, but in
reality it is not so. In most cases, the executive is more powerful of the three branches of government.
Unlike, the other two approaches, the Marxist-Leninist approachrefute the application of the doctrine by arguing that
the theory of the separation of powers is “nothing but the profane industrial division of labour applied for purposes of
simplification and control to the mechanism of the state”. In essence, Marxist-Leninist theory rejects the theory of the
separation of powers because it ignores the class nature of society. The existence in a socialist state of state bodies
with different jurisdiction means that a certain division of functions in exercising state power is essential while
maintaining the unity of state power.
In India, there are three distinct activities in the Government through which the will of the people are expressed. The
legislative organ of the state makes laws, the executive forces them and the judiciary applies them to the specific cases
arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working
of another functionary because a strict demarcation of functions is not possible in their dealings with the general
public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these
organs. The question which is important here is that what should be the relation among these three organs of the
state, i.e. whether there should be complete separation of powers or there should be co-ordination among them.
“So far as the courts are concerned, the application of the doctrine (the theory of separation of powers) may involve
two propositions: namely,
a) that none of the three organs of Government, Legislative Executive and Judicial, can exercise any power which
properly belongs to either of the other two;
What is significant is the word “properly” and therefore conceives of a broad division of powers where the core
function is one which is exclusively conferred on that particular organ of State, though there may be some overlap in
regard to the fringe areas of the topics so entrusted. The pronouncement on this aspect of law by the courts is that
under the Indian Constitution there is a broad separation of powers.
The Constitution of India embraces the idea of separation of powers in an implied manner. Despite there being no
express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make
the provisions for a reasonable separation of functions and powers between the three organs of Government.
By looking into the various provisions of the Constitution, it is evident that the Constitution intends that the powers of
legislation shall be exercised exclusively by the legislature. Similarly, the judicial powers can be said to vest with the
judiciary. The judiciary is independent in its field and there can be no interference with its judicial functions either by
the Executive or by the Legislature. Also, the executive powers of the Union and the State are vested in the President
and the Governor respectively.
The constitution of India lays down a functional separation of the organs of the State in the following manner:
• Article 50 lays down that State shall take steps to separate the judiciary from the executive. This is for the
purpose of ensuring the independence of judiciary.
• Article 122 and 212 provides validity of proceedings in Parliament and the Legislatures cannot be called
into question in any Court. This ensures the separation and immunity of the legislatures from judicial
intervention on the allegation of procedural irregularity.
• Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the
Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.
• Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be
vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
• Article 361 declared that the President or the Governor shall not be answerable to any court for the
exercise and performance of the powers and duties of his office.
• The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its
privilege, impeachment of the President and the removal of the judges.
• The executive may further affect the functioning of the judiciary by making appointments to the office of
Chief Justice and other judges.
• Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and
revalidating it..
• While discharging the function of disqualifying its members and impeachment of the judges, the
legislature discharges the functions of the judiciary.
• Legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under
the powers and privileges of the parliament. But while exercising such power it is always necessary that it
should be in conformity with due process.
• The heads of each governmental ministry is a member of the legislature, thus making the executive an
integral part of the legislature.
• The council of ministers on whose advice the President and the Governor acts are elected members of the
legislature.
• Legislative power that is being vested with the legislature in certain circumstances can be exercised by
the executive. If the President or the Governor, when the legislature or is not in session and is satisfied
that circumstances exist that necessitate immediate action may promulgate ordinance which has the
same force of the Act made by the Parliament or the State legislature.
• The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the
States respectively, the authority to make rules for regulating their respective procedure and conduct of
business subject to the provisions of this Constitution. The executive also exercises law making power
under delegated legislation.
• The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial
functions. Administrative tribunals which are a part of the executive also discharge judicial functions.
• Higher administrative tribunals should always have a member of the judiciary. The higher judiciary is
conferred with the power of supervising the functioning of subordinate courts. It also acts as a legislature
while making laws regulating its conduct and rules regarding disposal of cases.
Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three
departments.
Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where none of
the organs can usurp the functions or powers which are assigned to another organ by express or necessary provision,
neither can they divest themselves of essential functions which belong to them as under the Constitution.
Further, the Constitution of India expressly provides for a system of checks and balances in order to prevent the
arbitrary or capricious use of power derived from the said supreme document. Though such a system appears dilatory
of the doctrine of separation of powers, it is essential in order to enable the just and equitable functioning of such a
constitutional system. By giving such powers, a mechanism for the control over the exercise of constitutional powers
by the respective organs is established.
This clearly indicates that the Indian Constitution in its plan does not provide for a strict separation of powers.
Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and
overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of
Government.
The debate about the doctrine of separation of powers, and exactly what it involves in regard to Indian governance, is
as old as the Constitution itself. Apart from the directive principles laid down in Part-IV of the constitution which
provides for separation of judiciary from the executive, the constitutional scheme does not provide any formalistic
division of powers. It appeared in various judgments handed down by the Supreme Court after the Constitution was
adopted. It is through these judicial pronouncements, passed from time to time, that the boundaries of applicability of
the doctrine have been determined.
In the re Delhi Laws Act case, it was for the first time observed by the Supreme Court that except where the
constitution has vested power in a body, the principle that one organ should not perform functions which essentially
belong to others is followed in India. By a majority of 5:2, the Court held that the theory of separation of powers
though not part and parcel of our Constitution, in exceptional circumstances is evident in the provisions of the
Constitution itself.As observed by Kania, C.J.:
“Although in the constitution of India there is no express separation of powers, it is clear that a legislature is created by
the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply that unless it
can be gathered from other provisions of the constitution, other bodies-executive or judicial-are not intended to discharge
legislative functions?”
In essence, this judgment implied that all the three organs of the State, i.e., the Legislature, the Judiciary, and the
Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers,
jurisdictions, responsibilities and relationship with one another. Also, that it can be assumed that none of the organs of
the State, including the judiciary, would exceed its powers as laid down in the Constitution.
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In practice, from time to time, disputes continued to arise as to whether one organ of the State had exceeded the
boundaries assigned to it under the Constitution. This question of what amounts to an excess, was the basis for action
in the landmark KesavanandaBharti case of 1973. The question placed before the Supreme Court in this case was in
regard to the extent of the power of the legislature to amend the Constitution as provided for under the Constitution
itself. It was argued that Parliament was “supreme” and represented the sovereign will of the people. As such, if the
people’s representatives in Parliament decided to change a particular law to curb individual freedom or limit the
scope of judicial scrutiny, the judiciary had no right to question whether it was constitutional or not. However, the
Court did not allow this argument and instead found in favour of the appellant on the grounds that the doctrine of
separation of powers was a part of the “basic structure” of our Constitution.
Thus, the doctrine of “separation of powers” is acknowledged as an integral part of the basic features of our
Constitution. It is also agreed that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive
are bound by and subject to the provisions of the Constitution, which demarcates their respective powers,
jurisdictions, responsibilities and relationship with one another. It is assumed that none of the organs of the State,
including the judiciary, would exceed its powers as laid down in the Constitution. It is also expected that in the overall
interest of the country, even though their jurisdictions are separated and demarcated, all the institutions would work
in harmony and co-operation to maximize the public good.
As per this ruling, there was no longer any need for ambiguity as the doctrine was expressly recognized as a part of the
Indian Constitution, unalterable even by an Act of Parliament. Thus, the doctrine of separation of powers has been
incorporated, in its essence, into the Indian laws.
However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain that the place of this doctrine in the
Indian context was made clearer. It was observed: “That in the Indian Constitution, there is separation of powers in a
broad sense only. A rigid separation of powers as under the American Constitution or under the Australian
Constitution does not apply to India.”Chandrachud J. also observed that the political usefulness of the doctrine of
Separation of Power is not widely recognized. No Constitution can survive without a conscious adherence to its fine
check and balance.
The doctrine of separation of powers was further expressly recognized to be a part of the Constitution in the case of
Ram JawayaKapur v. State of Punjab, where the Court held that though the doctrine of separation of powers is not
expressly mentioned in the Constitution it stands to be violated when the functions of one organ of Government are
performed by another. This means the Indian constitution had not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of different parts or branches of the Govt. have been sufficiently
differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one
organ or part of the state, of functions that essentially belongs to another.
In I.C. GolakNath v. State of Punjab, Supreme Court took the help of doctrine of basic structure as propounded in
KesvanandaBharati case and said that Ninth Schedule is violative of this doctrine and hence the Ninth Schedule was
made amenable to judicial review which also forms part of the basic structure theory. It was observed: “The
Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union
Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping
their limits. They should function within the spheres allotted to them.”
need a way to balance each of the branches. Typically this was accomplished through a system of "checks and
balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Under the
system of checks and balances, one department is given certain powers by which it may definitely restrain the others
from exceeding constitutional authority. It may object or resist any encroachment upon its authority, or it may
question, if necessary any act or acts which unlawfully interferes with its sphere of jurisdiction and authority.
The Indian Constitution provides for a scheme of checks and balances between the three organs of government
namely, the legislature, the executive and the judiciary, against any potential abuse of power. For example,
• The judges of the Supreme Court and the High Courts in the States are appointed by the executive i.e. the
President acting on the advice of the Prime Minister and the Chief Justice of the Supreme Court. But they may
be removed from office only if they are impeached by Parliament. This measure helps the judiciary to function
without any fear of the executive.
• Similarly, the executive is responsible to Parliament in its day to day functioning. While the President
appoints the leader of the majority party or a person who he believes commands a majority in the LokSabha
(House of the People or the Lower House) a government is duty bound to lay down power if the House adopts
a motion expressing no confidence in the government.
• Similary the judiciary keeps a check on the laws made by Parliament and actions taken by Executives,
whether they conform to the constitution or not, using the tool of Judicial Review.
Article 144 of the Constitution declares that all authorities, civil and judicial, shall come to the aid of the Supreme
Court. Article 141 is to the effect that the law declared by the Supreme Court is binding on all courts within the
territory of India. Articles 129 and 142(2) expressly confer the power of contempt on the Supreme Court of India and
Article 215 correspondingly confers such power on the High Courts of the country. This, history has shown, is the most
potent weapon in the hands of the superior courts to compel obedience to its will.
It is only the fear of being sent to jail, which makes the clients and lawyers to be disciplined and respectful to the
judges and to faithfully carry out their judgments and orders. It is therefore clear that the founding fathers did not
allow the Indian Supreme Court to go the way of the US Supreme Court where a belligerent President could turn
around and say, “the judge has made his decision, let him now enforce it.”
Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.
However the only check on judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine
cannot be liberally applied to any modern government, because neither the powers can be kept in water tight
compartments nor can any government can run on strict separation of powers.
In Suman Gupta v. State of Jammu and Kashmir,the respective State Government reserved certain seats in medical
colleges for the students residing in the particular state on reciprocal basis, this policy of state was challenged on the
ground that it discriminate among the students on the ground of place of birth. The Supreme Court rejected the policy
on the ground of discrimination but meanwhile the students who are the beneficiaries of this policy had completed
their substantial education, and now it is not in the interests of justice to cancelled their admission, therefore here
supreme court applied the doctrine of prospective overruling and held that the government must not apply the
impugned policy from next academic year.
Therefore, by using the doctrine of prospective overruling in the above to cases, the Supreme Court maintained the
balance between judiciary and other organs of the government. It can also be maintained by using the self restraint by
the judges.
In Divisional Manager, Aravali Golf club v. Chander Hass and Another, the Supreme Court warned the High court
for its over activism. The Supreme Court held that since there was no sectioned post of tractor driver against which
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the respondents could be regularized as tractor driver, the direction of the first appellate court and the single judge to
create the post of tractor driver and regularizing he services was completely beyond their jurisdiction. The court
cannot direct the creation of post. Creation and sanction of post is a prerogative of the executive or legislative
authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of
posts in any organization. The court further said that the creation of a post is an executive or legislative function and it
involves economic factors. Hence, the courts cannot take upon themselves the power of creation of post.
Similarly, in MadhuHolmagi v. Union of India, wherein one Advocate filed a public interest litigation challenging the
“Agreement 123” i.e. Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended
that court must have to scrutinize the all documents relating to the agreement 123 and must have to prevent the
Indian government from entering in to the nuclear deal. In this court dismissed the petition and also imposed a cost of
Rs 5000 on the petitioner stating that it is an abuse of court proceeding. Because the question raised by the petitioner
is a question of policy decision, which is to be decided by the parliament and not by the judiciary.
Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of
Congress to alter the composition and jurisdiction of the federal courtsThe following are illustrations where there are
checks and balances:
a) the lawmaking power of the Congress is checked by the President through its veto power, which in turn
maybe overturn by the legislature
b) the Congress may refuse to give its concurrence to an amnesty proclaimed by the President and the
Senate to a treaty he has concluded
c) the President may nullify a conviction in a criminal case by pardoning the offender
d) the Congress may limit the jurisdiction of the Supreme Court and that of inferior courts and even abolish
the latter tribunals
e) the Judiciary in general has the power to declare invalid an act done by the Congress, the President and
his subordinates, or the Constitutional Commissions.
Until 2005, the Lord Chancellor fused the Legislature, Executive and Judiciary, as he was the ex officio Speaker of the
House of Lords, a Government Minister who sat in Cabinet and was head of the Lord Chancellor's Department which
administered the courts, the justice system and appointed judges, and was the head of the Judiciary in England and
Wales and sat as a judge on the Judicial Committee of the House of Lords, the highest domestic court in the entire
United Kingdom, and the Judicial Committee of the Privy Council, the senior tribunal court for parts of the
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Commonwealth. The Lord Chancellor also had certain other judicial positions, including being a judge in the Court of
Appeal and President of the Chancery Division. The Lord Chancellor combines other aspects of the constitution,
including having certain ecclesiastical functions of the established state church, making certain church appointments,
nominations and sitting as one of the thirty-three Church Commissioners. These functions remain intact and
unaffected by the Constitutional Reform Act.
In 2005, the Constitutional Reform Act separated the powers with Legislative functions going to an elected Lord
Speaker and the Judicial functions going to the Lord Chief Justice. The Lord Chancellor's Department was replaced
with a Ministry of Justice and the Lord Chancellor currently serves in the position of Secretary of State for Justice.
6 CONCLUSION
The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not
accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of
Separation of Power is that there should be government of law rather than having will and whims of the official. Also
another most important feature of the said doctrine is that there should be independence of judiciary i.e. it should be
free from the other organs of the State and if it is so then justice would be delivered properly. The judiciary is the scale
through which one can measure the actual development of the State. If the judiciary is not independent, then it is the
first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there
is a very high chance of misuse of power. Hence the Doctrine of Separation of Power does play a vital role in the
creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of
judiciary.
The doctrine of separation of powers has come a long way from its theoretical inception. Today, the doctrine in its
absolute form is only recognized in letter as it is entirely unfeasible and impractical for usage in the operational
practices of a government. With the passage of time, States have evolved from being minimal and non-interventionist
to being welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to the people.
In its omnipresent role, the functions of the State have become diverse and its problems interdependent hence, any
serious attempt to define and separate the functions would only cause inefficiency in the government.
The modern day interpretation of the doctrine does not recognize the division of Government into three water-tight
compartments but instead provides for crossing rights and duties in order to establish a system of checks and
balances. The mere separation of powers between the three organs is not sufficient for the elimination of the dangers
of arbitrary and capricious government. Even after the distinguishing the functions, if an authority wielding public
power, is provided an absolute and sole discretion within the body in the matters regarding its sphere of influence,
there will be a resultant abuse of such power. Therefore, a system of checks and balances is a practical necessity in
order to achieve the desired ends of the doctrine of separation of powers. Such a system is not dilatory to the doctrine
but necessary in order to strengthen its actual usage.
In conclusion, it is evident that governments in their actual operation do not opt for the strict separation of powers
because it is undesirable and impracticable, however, implications of this concept can be seen in almost all the
countries in its diluted form. The discrepancies between the plan and practice, if any, are based on these very grounds
that the ideal plan is impractical for everyday use. India relies heavily upon the doctrine in order to regulate, check
and control the exercise of power by the three organs of Government. Whether it is in theory or in practical usage, the
Doctrine of Separation of Powers is essential for the effective functioning of a democracy.
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Contents
1] Comparison Scheme .....................................................................................................................................................4
2] British Constitution.......................................................................................................................................................4
3.7 Doctrine of Separation of Power and the System of Checks and Balances ...............................................................17
3.7.1 US ............................................................................................................................................................................. 17
3.7.2 India ......................................................................................................................................................................... 17
3.7.3 Checks and Balances ................................................................................................................................................ 17
3.8 Fundamental Rights ...................................................................................................................................................18
3.9 Distribution of Legislative Power...............................................................................................................................19
3.9.1 India ......................................................................................................................................................................... 19
3.9.2 US ............................................................................................................................................................................. 19
3.10 Emergency and Suspension of Writs .......................................................................................................................19
3.11 Judiciary ...................................................................................................................................................................19
3.12 Amendment of the Constitution .............................................................................................................................20
4] Chinese Constitution .................................................................................................................................................. 20
5.1 Introduction...............................................................................................................................................................25
5.2 President ...................................................................................................................................................................25
5.3 The Legislature ..........................................................................................................................................................26
5.3.1 National Assembly.................................................................................................................................................... 26
5.3.2 The Senate ................................................................................................................................................................ 26
5.4 Prominent Features of the French Constitution........................................................................................................ 26
5.5 Amendment of the Constitution ...............................................................................................................................27
6] Germany’s Constitution .............................................................................................................................................. 27
7] Constitution of Japan.................................................................................................................................................. 29
9] Constitution of Australia............................................................................................................................................. 31
1] Comparison Scheme
Our discussion on Comparison of the Indian Constitutional Scheme with that of Other Countries would center
around two main pivots:
1) Brief knowledge of the Constitution of various countries, deemed important owing to their current
status or the fact that the Indian Constitution draws implicitly or explicitly from them.
2) Comparison drawn vis-a-vis features of the Constitution (for example: Fundamental Rights, DPSPs,
Federalism et al)
2] British Constitution
2.1 Salient Features
2.1.1 Unwritten
One of the most important features of the British constitution is its unwritten character. There is no such thing
as a written, precise and compact document, which may be called as the British constitution.
The main reason for this is that it is based on conventions and political traditions, which have not been laid down
in any document, unlike a written constitution, which is usually a product of a constituent assembly.
Indian Constitution, in comparison, is the lengthiest written constitution in the world.
2.1.2 Evolutionary
The British constitution is a specimen of evolutionary development. It was never framed by any constituent
assembly. It has an unbroken continuity of development over a period of more than a thousand years. It is said
that the British Constitution is a product of wisdom and chance.
The Indian Constitution has certain similarities as well as differences on this particular aspect. It differs from the
British Constitution to the extent that it is a written document and has well defined provisions. However, it too is
open to evolution, given that the provision of amendment is kept such, so as to allow for the Constitution to
evolve according to the need and sensibilities of the time.
2.1.3 Flexibility
The British constitution is a classic example of a flexible constitution. It can be passed, amended and repealed by
a Simple Majority (50% of the members present and voting) of the Parliament, since no distinction is made
between a constitutional law and an ordinary law. Both are treated alike. The element of flexibility has provided
the virtue of adaptability and adjustability to the British constitution. This quality has enabled it to grow with
needs of the time.
Indian Constitution, in contrast, is both flexible as well as rigid. This compliments the basic ideology of the Indian
Constitution quite well, wherein certain features like Sovereignty, Secularism, and Republic et al have been held
sacrosanct, but otherwise the Constitution lends itself to amendability.
2.1.4 Unitary vs. Federal Features
The British constitution has a unitary character as opposed to a federal one. All powers of the government are
vested in the British Parliament, which is a sovereign body. Executive organs of the state are subordinate to the
Parliament, exercise delegated powers and are answerable to it. There is only one legislature. England, Scotland,
Wales etc. are administrative units and not politically autonomous units.
The Indian Constitution, on the other hand, is federal.
Unitary Federal Confederation
All power lies with the Centre Powers for Provincial Units come together and form the state.
Government comes from the
Constitution.
Centre delegates power to the Example: India Real power with the units.
provincial government.
Example: Britain Opposite to Unitary
Example: EU, USA
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New Despotism: it is defined as prevalence of conditions wherein Bureaucrats enjoy disproportionate power, in
spite of a democratic system being in place. Consequently, the term ‘New Despots’ is used for bureaucrats, who
enjoy a lot of power even in a democratic country.
2.1.9 Independence of Judiciary
The Rule of Law in Britain is safeguarded by the provision that judges can only be removed from office for
serious misbehavior and according to a procedure requiring the consent of both the Houses of Parliament. So,
the judges are able to give their judgments without any fear or favor.
The same has been adopted in India, where independence of Judiciary is hailed as an unmistakable part of the
Constitution (one of the features of the ‘Basic Structure’ doctrine).
2.2 Organs of the State
2.2.1 Executive
The Executive in Britain is called as Crown. Earlier, the Crown symbolized King. Now, the King is part of the
Crown.
The Crown, as an institution, consists of the following:
• King
• Prime Minister
• Council of Ministers (CoM)
• Permanent Executive, the Civil Servants
• Privy Council
Crown: King is dead. Long live the King.
In Britain, initially all power lied with the King. Later on, power shifted out of the institution of the King to the
institution of CoM headed by the P.M., Permanent Executive and the Privy Council etc. Today, the Crown
comprises of all these institutions. Hence, the first part of the statement describes the King as a person, while
the second part describes the King or Crown as an institution.
Nature of Monarchy
Britain has a constitutional monarchy and a constitutional monarchy is not incompatible with democracy. This is
because essentially the powers of the monarch as head of the state - currently Queen Elizabeth II - are
ceremonial. The most important practical power is the choice of the Member of Parliament to form a
government, but invariably the monarch follows the convention that this opportunity is granted to the leader of
the political party or coalition, which has majority in the House of Commons.
Despite its lack of real power, the monarchy still have several important roles to play in contemporary Britain.
These include:
• Representing UK at home and abroad
• Settings standards of citizenship and family life
• Uniting people despite differences
• Allegiance of the armed forces
• Maintaining continuity of British traditions
• Preserving a Christian morality
In addition, consider the following:
• Parliamentary system requires two heads:
o First head, as head of the state. He represents the nation and provides continuity to the
administration.
o Second head is the head of the government. He has real powers because the house has
confidence in the Prime Minister. The P.M. is the leader of the House. He represents the
majority of the House.
• The institution of kingship is a source of psychological satisfaction. It is said that, “with the King in the
Buckingham Palace, the Englishmen sleep peacefully in their houses”.
• The King is of great help in critical times. He usually has a very long experience and can give valuable
advice in the interest of the country.
• According to Bagehot, the King has three rights:
o Right to warn
o Right to encourage
o Right to be informed
• Abolishing the kingship will require an elected head. An elected head, with no real powers, will have its
own set of problems.
In contrast, no provision of Monarchy exists in case of Indian Constitution. Indeed, holding of titles like King etc.
are forbidden as per Article 18, a Fundamental Right, thus emphasizing Equality of all Indian citizens.
British Prime Minister and the Council of Ministers
Britain has a Cabinet form of government. A cabinet is a plural or collegiate form of government. The power
doesn’t lie in one person, but the entire Council of Ministers. The principle is, “all Ministers sink and swim
together”. It is based on collective responsibility towards the Lower House.
The Cabinet has its origins in the Privy Council set up to advise the King. The roles of cabinet include the
following:
• Approving policy (major policy making body)
• Resolving disputes
• Constraining the Prime Minister
• Unifying government
• Unifying the parliamentary party
Moreover, the Cabinet is the ultimate body of law making in the Parliamentary system. It is formed out of the
party/group, which enjoys majority in the House. The cabinet meetings are held in private.
British Prime Minister
1. Position of the Prime Minister
• P.M. is the captain of the ship of the state.
• P.M. is the head of the Cabinet.
• The party of the P.M. enjoys majority in the House.
• He is the connecting link between the King and the Cabinet as well as the King and the Parliament.
• The life of the House depends on the P.M. He may advice the dissolution of the House.
• The other Ministers are appointed on the advice of the P.M.
• The term of the other Ministers also depends on the P.M.
2. The P.M. as first among equals: this is also called as Primus Inter Pares or Inter Stella Luna Minores. This
explains the P.M.’s position w.r.t. other ministers. In the cabinet system, there is a principle of collective
responsibility; hence other ministers are also important.
The relative position of the P.M. and other ministers in a Parliamentary system can be compared to the
relative position of the President and his secretaries in the Presidential system.
In the Presidential system, members of the Cabinet are chosen by the President. In USA, spoils system
exist. The Secretaries are not members of the Congress.
In the Parliamentary system, ministers are also the members of either House. The P.M. cannot treat
them as his subordinates. Theoretically, the P.M. should consider himself as only first among equals,
must give due respect to other members of the Cabinet and should take decisions in consultation with
them.
However, the P.M. is first because:
• He is the one who is appointed first, since he is the leader of the House of Commons.
• Other ministers are appointed on his advice.
• Other ministers can be removed on his advice.
The courts adjudicate the disputes and while doing so, they can interpret the constitution and the laws. Also,
Parliament has the constituent powers and within certain limitations it can suitably amend the constitution.
The British Parliament is bicameral, that is there are two houses or chambers – The House of Lords (strength not
fixed) and The House of Commons (strength fixed at 650 members). The House of Lords has hereditary
members. Moreover, it has the largest number of Life Peers, Church/Religious peers (Ecclesiastical Peers) and
Law Lords.
The House of Lords
The House of Lords is the second chamber, or upper house, of the United Kingdom's bi-cameral (two chamber)
Parliament. Together with the House of Commons and the Crown, the House of Lords form the UK Parliament.
There are four types of members of the house:
1. Life peers: These make up the majority of the membership. The power to appoint belongs formally to
the Crown, but members are essentially created by the Queen on the advice of the Prime Minister. Life
peers’ titles cease on death.
2. Law lords: Up to 12 Lords of Appeal in Ordinary are specially appointed to hear appeals from the lower
courts. They are salaried and can continue to hear appeals until they are 70 years of age.
3. Bishops The Anglican Archbishops of Canterbury and York, the Bishops of Durham, London and
Winchester and the 21 senior Diocesan Bishops from other dioceses of the Church of England hold seats
in the House. This is because the Church of England is the ‘established’ Church of the State. When they
retire the bishops stop being members of the House.
4. Elected Hereditary peers: The House of Lords Act, 1999 ended the right of hereditary peers to sit and
vote in the House of Lords. Until then there had been about 700 hereditary members. While the Bill was
being considered, an amendment was passed (known as the Weatherill amendment after Lord
Weatherill who proposed it), which enabled 92 of the existing hereditary peers to remain as members.
The House of Lords can propose and make changes, known as amendments. However its powers are limited; if it
doesn’t approve of a piece of legislation, it can only delay its passage into law for up to a year. After that, there
are rules to ensure that the wishes of the House of Commons and the Government of the day prevail.
In fact, the House of Lords could be labeled as one of the weakest upper house in the world. Since the passage of
the Act of 1919 and 1949, the House of Lords has lost all real legislative powers. It is simply a delaying chamber
now. It can delay an ordinary bill for a maximum period of one year and money bill for a maximum period of one
month.
In comparison to Rajya Sabha, the House of Lords is a weak house. Rajya Sabha has equal powers with LokSabha,
as far as an ordinary bill is concerned (though, there is provision of a joint session, but it is an extraordinary
device).
Rajya Sabha has equal power with Lok Sabha as far as the amendment of the Constitution is concerned. Rajya
Sabha is also a delaying chamber, like the House of Lords, as far as a Money Bill is concerned. Rajya Sabha can
delay the bill for a maximum of fourteen days. Rajya Sabha does have some special powers, which are not
available to Lok Sabha; for example: Articles 249 and 312.
Comparison between the House of Lords and Senate of USA
• Senate is called as the strongest Upper House. It enjoys equal power with the House of Representative in
the context of an Ordinary Bill, a Constitutional Bill and even in passage of a Money Bill. It is customary
to introduce Money Bill in the Lower House.
• The Senate also enjoys some special powers not available to the House of Representatives. For example,
ratification of international treaties, ratification of higher appointments.
The House of Lords did enjoy a privilege that it used to be the highest Court of Appeal in Britain. But this has now
ceased to exist, as the Supreme Court has been created by the Constitutional Reform Act, 2005 (SC established
in 2009).
Reforms in the House of Lords
The House of Lords has been witnessing reforms for a long period now. Some prominent reforms done:
2.2.3 Judiciary
Under the doctrine of Parliamentary sovereignty, the judiciary lacks the intrinsic power to strike down an Act of
Parliament. However, the subordination of common law to statute law does not mean the subordination of the
judiciary to the executive. Courts in Britain retain certain powers:
• Of interpreting the precise meaning of a statute.
• Of reviewing the actions of ministers and other public officials by applying the doctrine of ultra vires
(beyond powers).
• Of applying the concept of natural justice to the actions of ministers and others.
Because Parliament is sovereign, the government can seek to overturn the decisions of the courts by passing
amendment legislation. The power of judicial review provides the judiciary with a potentially significant role in
the policy process.
In recent decades, there has been an upsurge in judicial activism for several reasons:
• Judges have been more willing to review and quash ministerial action
• British membership of the EU
• The incorporation of the ECHR (European Convention on Human Rights) into domestic law
• Devolution of powers to elected assemblies in Scotland, Wales and Northern Ireland
• The creation of a Supreme Court in 2009.
Comparison between the Indian and British Judiciary
Differences
• In case of British system, the lack of concept of ‘Basic Structure’ makes amending power of the
Parliament supersede any judicial pronouncement. Whereas, in case of the Indian Judiciary system, the
concept of ‘Basic Structure’ has provided a potent tool to Judiciary by which it can scuttle down any
Executive or Legislative action, which it deems as against the basic spirit of the Constitution.
• British legal system is completely based on ‘Common Law System’. Common Law System implies that law
is developed by the judges through their decisions, orders, or judgments (also referred to as
precedents). However, unlike the British system, which is entirely based on the Common Law System,
where it had originated from, the Indian system incorporates the Common Law System along with the
statutory and regulatory laws.
Similarities
• The actions of Executive can be declared ultra vires in both the systems
• The judiciary is considered the highest interpreter of the Constitution
• Off late, there has been a splurge in judicial activism in Britain and judiciary is becoming more and more
active. A similar evolution of judiciary has been noticeable in the Indian case too
Note: By Constitutional Reform Act, 2005 the Supreme Court has come into existence as the highest Court of
Appeal. A National Judicial Appointment Commission has also been introduced.
Brief Synopsis of comparison drawn above:
British Constitution:
Product of history and the result of evolution
There is a difference between theory and practice
Flexible and unitary constitution
Parliamentary government
Rule of law and civil liberties applicable
Dual Federation (USA) – both the Centre and Cooperative Federation (India) – Interdependence of Centre
state are completely independent. They are and state govt. Neither of them is independent of the other.
complete governments Centre usually has the role of big brother
Centrifugal federalism Centripetal federalism
Symmetrical federalism – all states are given Asymmetrical federalism –
equal representation in Senate 1. States have been given representation in Rajya Sabha on
the basis of their population.
2. Articles 370, 371 provide special provisions to few states.
USA is a Legislative federation. This means India is an Executive federation. This means that states are
that States have dominance in law making. important at the executive level only.
USA is an indestructible union of India is an indestructible union of destructible states
indestructible states
USA constitution provides a role to states in There is no such provision for states in the Indian
ratifying the international treaties through Constitution
the Senate
Electoral College
• Strength of Electoral College = Total members in House of Representatives + Senate + 3 members from
Washington D.C. = 435 + 100 + 3 = 538
• Winning Candidate requires an absolute majority (50% + 1) of the total members of the Electoral
College, i.e. 270.
In the House of Representatives, members from different states are not fixed, while in Senate members from
different states are equal and fixed.
Election of Electors
• The voters vote for the members of the Electoral College
• System of election is the List System
• Each state has a responsibility to conduct these elections
• The party that wins the majority of the votes represents the state in entirety
• Electors meet in their respective capital and vote for the Presidential candidate
3.2.3 Functions of the President of USA
Executive Functions
• Appointments
• Representing the country
• Preparation of the Budget
Legislative Functions
• No presence in legislature
• The President doesn’t address the legislature
• He cannot dissolve the legislature
• He can send messages to the legislature (the system of sending messages exists in USA because there is
Separation of Power. So this is the way that the President can interact. The system of sending messages
is found in India also, but the logic of the provision is not clear because the President has no
discretionary power and he has to act on the advice of the P.M.)
Veto Power
Under the Constitution, the President may respond to a bill passed by the Congress in one of the three
ways. He may sign it, veto the bill by returning it to Congress, or do nothing. If he does nothing, the bill
becomes a law after the passage of ten days, excluding Sundays. However, if the Congress adjourns
sooner than ten days, the bill dies, under the “pocket veto” provision. If the President vetoes a bill, the
Congress can still enact it into a law bypassing the measure again with two-thirds majority in both the
houses.
3.2.4 Legislative Proposals
The Constitution also authorizes the President to “recommend to Congress’ consideration such measures as he
shall judge necessary and expedient.” Unlike the veto, which is a limited and somewhat negative instrument for
stopping legislation, the duty to recommend legislation has over time become the primary mechanism, by which
the nation's political agenda is influenced.
Indian President
• In India, the President has the power to send back a bill to the Parliament for reconsideration. But, when
the Parliament has reconsidered the bill and then passes it with the required majority, the President has
no option but to sign the bill.
• Practically, the Prime Minster and his Cabinet almost always enjoy a simple majority, except in a
coalition government. So, it does not pose a major hurdle for the Prime Minster and his cabinet to get
the consent of the President for the bill.
However, a significant departure from the US Presidential Scheme of things is that unlike the US, the Indian
Constitution does not prescribe any time limit for signing the bill by President. Therefore, he can keep the bill
without signing it for an indefinite period under the disguise of consideration, which can frustrate the Prime
Minster and his cabinet. Obviously, this leads us to the question whether the Indian President’s pocket veto is
more powerful than the US President’s pocket veto.
3.2.5 Date of Retirement and Oath
US
• A unique feature of the US Constitution is that it has prescribed the date and timing of retirement of the
outgoing President as well as members of the Congress.
• The terms of President and Vice President shall end at noon on the 20th day of January.
• It means that the new President and Vice President shall take oath of the office on 20th January (or 21st
January, if 20th is a Sunday) at noon of their first year of office.
• The election of the President and Vice president are held in the month of November and in the same
month results are announced.
Thus, Americans are informed much earlier about their new President.
Naturally, the question is how this time schedule is maintained. In case of President’s death, resignation, or
impeachment, the Vice President shall become the President for the remaining period. In this way, duration of
the President is kept intact and the next elected President takes oath on the scheduled date.
India
• In India, if the President dies or is impeached, or submits resignation, the Vice President becomes the
President till fresh elections are held. The newly elected President holds the office for a full term of five
years.
• Hence, unlike the American system the time schedule cannot be maintained, in the case of India.
3.2.6 Primaries
• Primaries are elections to select the candidate
• They are conducted by Political Parties
3.2.7 Impeachment of the President of USA
• Reasons: Treason, Bribery, High Crimes of Misdemeanor. No system of impeachment for violation of the
Constitution, unlike the Indian Constitution
• Process
o Charges will be leveled against the President in the House of Representatives
o It has to be passed by 2/3rd majority
o Senate will be the investigating house
o In this process, the Chief Justice of the Supreme Court of USA will be the presiding officer
o If convicted, he can be removed only when 2/3rd members of the Senate pass a resolution in this
context
Some terms of the US Constitution
Filibustering: It’s a privilege of Senators that they can exercise his right to speak for an unlimited period. It’s an
ultimate device to stop the passage of a bill. However, now a rule has emerged, by which 2/3rd of the members
can bring a motion, which will deny this privilege to the Senators.
Senatorial Courtesy: A convention has developed by which the President, before formally sending the names
for appointments in higher posts, informs the Senate about the probable candidates to be appointed. The idea
in such situations should not arrive, where the Senate does not ratify the President’s proposal.
Gerrymandering: It is the process of demarcating the electoral districts that give advantage to the party in
power in the state. They create electoral districts in a manner that the supporters of the party get concentrated
and the supporters of the opposition party get dispersed, with the objective of electoral gains.
Log Rolling: The members of a party may support a bill or viewpoint of the other party. Strict party discipline is
not only existing, but also not required
Pork Barrel: It represents the politics in the House o Representatives where local interest dominates and the
representatives want to take maximum benefits for their constituencies.
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3.6.2 India
• In India, during an emergency, the duration of Lok Sabha can be extended by one year, or can be
shortened by holding pre-matured elections.
• The ruling party forms opinion based on their party’s prospects in the next election. It may recommend
for the dissolution of Lok Sabha and suggest the President to hold the election at an appropriate time,
which may be based on political expediency.
3.7 Doctrine of Separation of Power and the System of Checks and Balances
The theory of Separation of Powers started with John Locke and became popular with Montesquieu (18th century
philosophers).
Why Separation of Powers/Functions?
• According to Montesquieu – liberty is not protected, unless there is Separation of Power.
• Separation of Power with judiciary is a universal feature in all democracies.
• The Presidential system provides Separation of Power w.r.t. all three organs of the government,
whereas in the Parliamentary system there is a fusion of legislative and executive powers.
3.7.1 US
• The US Constitution strictly adheres to the doctrine of Separation of Power proposed by Locke and
Montesquieu. Separation of Power is complete in US.
• All the three branches of the government have separate functions.
• The term of Legislature and Executive are fixed and do not depend on each other.
• None of the member of the Legislature can be a member of the Executive.
• The Houses of Congress enact the law; the President executes the law; and the Supreme Court interprets
the law.
• The American President has no privilege of law making power. Moreover, he is neither a member of the
House of Representative nor that of Senate.
• By confirming veto power but equally not confirming the law-making power to the President, the
Congress controls the Presidents and vice versa. In this way, ‘Checks and Balance’ are maintained.
3.7.2 India
• Theoretically, we may say that the doctrine of Separation of Power is adopted in our Constitution, but it
is only between the Executive and Judiciary.
• The President is a part of the Union Executive. Yet, it is the Prime Minster and the Council Ministers who
are the real executive because the President has to act on the aid and advice of the Council of Ministers.
• They have dual capacity:
o One, in capacity of executive; and
o Two, in the capacity of lawmaker.
• The Prime Minster, in his capacity as the leader of the ruling party can enact a law, which his
administration executes. Thus, the Prime Minster and his Council Ministers enact the law and the
administration executes the same, which is per se, contradictory to the doctrine of Separation of Power.
3.7.3 Checks and Balances
No organ of the government can be given complete liberty. Hence there have to be checks and balances.
How are checks and balances achieved in the US Constitution?
• Judiciary checks on other branches of the government, by judicial review of the executive as well as
legislative acts.
• How Congress checks the President or powers of the President?
o It is necessary to ratify the international agreements and higher appointments
o Principle of no taxation without representation
o Impeachment of the President
• How President checks the Congress
o By the use of veto powers (Congress can pass a bill against Presidential veto with 2/3rd majority.
So the President doesn’t have absolute veto.
o Pocket Veto: Two situations arise –
Congress in session for ten days: Bill can be passed even without the assent of the
President
Congress in session for less than ten days: Bill will lapse.
• President and Congress applying checks on Judiciary
o Appointment of Judges: appointed by the President and ratified by the Senate
o Removal of Judges: removed through impeachment by the Congress and approved by the
President
o Salaries and emoluments controlled by the President
3.8 Fundamental Rights
While US has incorporated the “Bill of Rights”, India has incorporated “Fundamental Rights” in its Constitution.
However, the American Constitution has provided additional human rights, which are not to be explicitly found
in the Indian Constitution.
• Freedom of press is explicitly provided under the 1st amendment of the US Constitution, while in India it
is implicitly read under the Article 19[1][a], freedom of speech and expression.
Petition to the Supreme Court is a fundamental right in India, where as in US it is the government that is
petitioned (In case of US, the word “government” has a wider connotation and encompasses not only
the executive, but also the higher judiciary).
• The Americans have a right to keep arms and guns for the protection of their life and property. This was
provided under the 2ndamendment.
Therefore, guns and arms are sold like any other commodity in US without legal hassles, whereas
in India it is a total contrast, because apart from not being a fundamental right, it is a highly regulated
legal right.
5th amendment to the US Constitution guarantees that an accused will be tried for criminal offence with a
system of “Grand Jury”. Grand Jury means that common people are selected by the government randomly,
representing the community. They play a part in deciding the guilt of the accused persons. The number of
persons selected to be in the grand jury varies from 6 to 12, or even more, if the case is controversial.
On the other hand, in India criminal trials are adjudicated by the Judges only.
• Further, in US, no person’s life and liberty shall be deprived without “due process” of law.
o Due process means that the content and procedure of law must be just, fair, and equitable,
which will be decided by the judiciary.
o Legislative power of depriving a person’s liberty is restricted and scrutinized and evaluated by
the judiciary.
• In India, a person’s life and liberty shall be deprived according to the “procedure established by law”.
o The world “procedure established by law” gives wide discretionary power to the legislature to
restrict the liberty.
o Nevertheless, the Supreme Court in Maneka Gandhi case (even though the court did not use the
word due process) held that the procedure established by law must be fair, just and equitable.
• The Indian Parliament deleted the Right to Property from the list of Fundamental Rights in 1978.
Whereas, in US, the right to property is still a fundamental right and no property shall be acquired
without just compensation.
• A person accused of crime enjoys certain explicit rights under the 6th Amendment to the US Constitution:
speedy and public trial, notice of accusation, compulsory process of obtaining witness in his favor and
assistance of legal counsel of his choice.
o All these rights in India are not expressly mentioned in the Constitution. Nonetheless, these
rights are provided by the Supreme Court by broadly interpreting the Right to Life and Liberty
under Article 21.
• Further, the 8th amendment to the US Constitution says that bail shall not be denied to an accused, the
imposed fine should not be excessive and inflicted punishment shall not be cruel. These rights are also
made available to Indian people because of well-established precedents pronounced by the Supreme
Court under Article 21.
• 9th amendment to the US Constitution is quite important because it says that mere enumeration of
certain rights in the Constitution shall not be interpreted to deny the other rights retained by the
American people. In spite of the statutory rights in the Constitution people enjoy other rights, which are
given by nature. The American Constitution is highly influenced by Locke’s philosophy of inalienable
natural rights of human being. The Indian Constitution, on the other hand, does not contain any such
notable Article. Therefore, Indians enjoy only those rights recognized by the Constitution, which are
based on the philosophy of Austin and Bentham’s theory of law.
3.9 Distribution of Legislative Power
3.9.1 India
Seventh Schedule of the Indian Constitution distributes the legislative power between the Central and State
governments. The Central and State governments have exclusive power to make laws on 97 and 66 subjects,
listed in the Union and State list respectively. On the 47 matters of Concurrent list both the Centre and State can
make laws. In case of conflicting laws, law of the Centre would prevail.
97th subject in the Union list says that any subject, which does not belong to any other list would automatically
confer power to the Parliament to make a law regarding that subject. Thus, our constitution makers have
created stronger Central and weaker State governments, which depend on the Central government for the
financial assistance.
3.9.2 US
It is quite contrary in the case of US, where no elaborative mechanism is provided. Few expressly mentioned
subjects are with the federal and rest of the matters with State governments.
3.10 Emergency and Suspension of Writs
In India, an emergency can be declared on the ground of War and Armed Rebellion. During such emergency all
fundamental rights except the right to life can be suspended. The American Constitution does not use the phrase
of emergency but says that in case of Rebellion and Invasion of Public Safety, the writ of Habeas Corpus can be
suspended.
3.11 Judiciary
There is no qualification mentioned for the appointment of judges of the Supreme Court. In America, the
President has the final say in the appointment of Supreme Court Judges. He suggests the names of judges to the
Senate and on the advice and consent of the Senate, judges are appointed by the President. The Judicial
Committee of Senate plays a very significant role in evaluating the credentials of the proposed judges of the
Supreme Court. They make the investigation of the background of judges, they hold a face-to-face interaction
with the judges, the judges are queered and grilled and questions are put. The whole process happens in public
and in a transparent manner. If a citizen of the US has any information about judges’ integrity, he can send that
information, with evidence, to the Senate Judicial Committee, which further investigates to ensure that no
unworthy candidate is appointed as a Judge to the Supreme Court. In the appointment of Judges the people of
US also participate and the judiciary of US has no role to play in the appointment of judges. The entire process of
appointment of judges is crystal clear.
There is no fixed tenure of the judges. However, if they are retiring at the age of 70 years, they will get salary and
perks as a working judge.
In India, on the other hand, the entire process of appointment of judges happens in a darkroom, between the
judiciary and executive. The people of India come to know of the judges only after their appointment. Neither
are the people informed in advance, nor does the executive make an open enquiry about judges. The President
appoints Judges to the Supreme Courts based on a process, in which the Chief justice and four senior judges of
the SC play a very dominant and decisive role. The entire process of appointment of judges happens in the
backyard and under the carpet without involvement of the people, which is cited by many as a serious flaw of
the Indian legal system. The judges hold the office up to the age of 65 years.
3.12 Amendment of the Constitution
There are two ways to amend the Constitution:
• Proposed by the Congress and ratified by the States
o Amendment to be passed by 2/3rd majority in both the Houses
o To be ratified by the State Legislatures of at least 3/4th of the States
• Proposed by States and ratified by the States
o 2/3rd of the States should pass a resolution to this effect
o They will communicate to the Congress. The Congress will call the convention.
o In the convention, it has to be ratified by 3/4th of the States
In case of India, the amendment process is easy and flexible as compared to the US. In India, it is only the
Parliament that can propose an amendment to the Constitution and States do not have any role to play in this
matter. While some of the Articles can be amended by a simple majority, special majority is required for others,
and in some limited Articles, ratification by more than half of the States is also required. Majority here means
majority of the Members of the Parliament present on the date of the amendment, and is not related to the
total strength of the Parliament.
The fact that the US Constitution got amended only 27 times in the last 225 years, shows how rigid it is to amend
the US Constitution, in contrast to the Indian Constitution.
4] Chinese Constitution
China is a socialist country. There is supremacy of socialist ideology in China. The Chinese Constitution accepts
the leadership of the Communist Party of China (CPC).
Communist Party of China (CPC) is the largest political party in the world, having millions of local level members.
It works on the principle of Democratic Centralism. The full meeting of the party is called as National Party
Congress (NPC), which is convened once in five years. Though theoretically all power lies with the people, but in
practice, it is with the top leaders.
NPC members select the members of the Central Committee. The Central Committee selects the Polit Bureau
(around 200 members). The Polit Bureau selects the Standing Committee of the Polit Bureau (at present 24
members; the most powerful members of the party).
4.1 Salient Features of the Constitution
4.1.1 Preamble
The paramount position of Marxism, Leninism and Mao’s teachings has been acknowledged in relation to
ideological goals of the political system. Traditional principle of Democratic Centralism has also been given due
place within the Constitutional setup. The old definition of China as a “Dictatorship of the Proletariat” has been
replaced with “People’s Democratic Dictatorship.”
The Preamble clearly recognizes Taiwan as an integral part of China and its liberation is declared as a liability of
Chinese People. Five points have been set as the underlying principles to be observed in the field of foreign
relations. These include:
a) Respect and Preservation of the territorial integrity of all nations
b) Avoidance of aggression
c) Non-interference in the internal affairs of other countries
d) Promotion of international cooperation
e) Peaceful coexistence
4.1.2 Nature of Constitution
It has close affinity in letter and spirit, with the constitution of the former Soviet Union. It is neither too rigid nor
too flexible.
The Congressmen are elected for a period of five years but the Congress can be dissolved before the expiry of its
term and it can be extended as well. The Standing Committee of the Congress is responsible for making proper
arrangements for holding fresh elections prior to the completion of its term.
Sessions
Sessions of the Congress are held once a year in Beijing. The Standing Committee of the Congress normally
summons its session. In addition to it, the Chairman of the Congress can also summon the session on the request
of one fifth of its members.
Powers
The National People’s Congress is the supreme law-making body, which is fully authorized to enact laws, alter or
repeal the existing ones. It also approves the administrative policy for the state.
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1. Enactment of Laws
During its sessions, the Congress enacts new laws and makes necessary alterations in the existing ones, if
circumstances so demand. The Constitution can be amended with the support of two-thirds majority of the
members of the Congress, whereas ordinary laws are enacted by a simple majority. It is to be noted, that the
acts of the Congress cannot be challenged in the Supreme Court.
2. Executive Powers
National People’s Congress is also empowered under the Constitution, to supervise the execution of
constitutional laws and statutes. It can affect and control administrative policies through its choice regarding
the appointment of superior public officials. All the administrative departments along with their ministers in
charge are accountable to the Congress in respect of performing their official functions. Congress also
exercises the power to approve National Economic Policy and the annual budget. Congress is fully authorized
under the constitution to exercise all such powers as it thinks expedient and necessary within its sphere of
action.
3. Elective functions
NPC holds a pivotal position within governmental structure by virtue of its power to elect the top-notch
occupants of the governmental authority. Under the Constitution, it also elects the President and Vice
President of the Republic and appoints Premier of the State Council on the recommendation of the
President. On the advice of the Premier, it also appoints other ministers. Congress is also empowered to
remove the ministers. It also exercises the power to appoint or remove the President of the Supreme Court
and Chief Procurator of the Supreme Procurate.
Though the NPC is fully authorized by the Constitution to exercise all the foregoing powers, in practice, it is
not an active body. Rather its position, as a free law-making body is merely in theory. Major reasons being:
• Its sessions are rarely held on a regular basis.
o It meets only once a year, that too for not more than a few days.
• The powers of Congress are virtually exercised by its Standing Committee.
Standing Committee
The Standing Committee of the Congress is an effective and active body, as it exercises, in practice, most of the
Congressional powers. It is outwardly a body subordinate to the Congress, as a matter of principle. It is
accountable to the parent body and is bound to present regular reports of its working. All the members of the
Committee are elected by the Congress and liable to be removed on its discretion.
Powers
1. The Committee summons the sessions of the Congress, in addition to the issuance of orders to hold its fresh
elections.
2. It performs the function of interpreting the statutes as well as the laws of the Constitution. The performance
of this judicial type of function enhances its importance and the scope of power.
3. It supervises the functioning of the State Council, of superior courts and that of Procurator. These functions
have been assigned to the Standing Committee by the Constitution.
4. The Committee has the authority to alter or repeal any inappropriate decision of the official departments,
autonomous regions, provinces and that of the Municipalities working under the Central government.
5. It is actually the repository of real powers during the interval in which the Congress is out of session. During
this period, it wields the authority to issue orders regarding the appointment of new ministers and removal
of the previous ones, on the advice of the Premier. It can issue orders for the appointment or removal of the
Vice President as well as the Deputy Chief Procurator.
Chairman
The Chairman of the Committee has been regarded as the most powerful person in the political setup. He
presides over the meetings of the Standing Committee. He has also been endowed with the power to issue
decrees and promulgate ordinances. His list of duties include:
• To receive the diplomatic envoys of other countries;
• Ratification of the treaties made with other countries; and
• Appointment of the members of diplomatic corpse assigned to other countries.
Other Committees
The People’s Congress forms a number of Committees during its term, such as National Committee on fiscal and
economic affairs, Committee on education, science, culture and health issues, Committee on foreign affairs,
Committee on matters relating to Chinese settled abroad. All these committees work under the supervision of
the Standing Committee of National People’s Congress during the period the latter is not in session.
Keeping in view the aforesaid functions and powers of the Standing Committee, it is apparent that it is a
powerful and effective body. As the Congressional annual session lasts a few days only, its powers are virtually
exercised by the Standing Committee for the remaining period the parent body is not in session. The
Committee’s members, being the members of the Chinese Communist Party, perform important role in
administrative affairs as well.
4.1.8 Executive
State Council
The State Council is the Cabinet or Executive of China. It is headed by the Premier, four Vice Premiers and State
Councillors. Under the Constitution, State Council is the chief executive organ of the government. All its
members are elected by the Congress and accountable to it. Enforcement of law, formation and execution of the
administrative policy is the major function of the Council. The members of the State Council introduce the bills
on the floor of the Congress in the form of proposals and later manage to get these translated into law on
parliamentary lines.
Premier
The Premier performs a very important role as head of the administration and holds a pivotal position within the
administrative set up.
President
• The President of the Republic is regarded as head of the state.
• He is elected by the Congress for a period of five years.
• The President enjoys the most prestigious position in the administrative setup.
4.1.9 Judiciary
China has a committed Judiciary, i.e. committed to the goal of Socialism. The highest organ is the Supreme
People’s Court. China also has a Court of Procuratorates – it deals with corruption cases of officials.
Chinese law has never been codified in a systematic form. Most of the disputes and controversies are settled in
quasi-judicial institutions. The Chinese judicial system has been held together more by conventions, rather than
by laws.
4.1.10 Central Military Commission
• The party and the government maintain control on the military through the Central Military Commission
• Military is also described as the defenders of the Communist Party.
4.1.11 Rights and Duties
Rights
• The Chinese Constitution gives Fundamental Rights and prescribes certain duties for its citizens.
• All citizens at least18 years of age are secured the right to vote. They also enjoy the right to contest
elections. Right to secrecy of all correspondence, freedom of speech and expression, freedom to join or
form associations, and right to hold public meetings even to the extent of staging demonstration or
resorting to strike for articulation of demands, have been secured under the Constitution.
• According to the constitution, the government is under obligation to afford full protection to the
preservation of family life in addition to the integrity of a person. All citizens have the right to personal
security against illegal detention. The constitution also recognizes equal right of all citizens to education
and cultural freedom. Equality of men and women has also been recognized in all areas of life.
Duties
The Chinese constitution explicitly prescribes certain duties of the citizens, which are justiciable. It is the first and
foremost duty of the citizens to cooperate with the Socialist leadership in every respect, abide by the
Constitution and all other state laws. They are required to protect public property and extend a helping hand in
the maintenance of law and order. To defend the country against foreign aggression is also another duty of the
citizens.
4.1.12 Communist Party of China
The Chinese Communist Party came into being in 1921. Lenin sent one representative to China to assist in
organizing the newly established party. Cheng Tu-hisu was appointed as the first Secretary General of the
Chinese Communist Party and within a short period many branches of the Party were established in the towns
and cities.
Ideological Foundations
Ideology of the Chinese Communist Party had been shaped by the teachings of Marx and Lenin right from its
inception. It developed a deep linkage with the global Communist Movement in its early phase. Mao also played
a pivotal role in the socialist struggle of the Chinese People.
Party Organization
The party operates on the principle of Democratic Centralism. Accordingly all office bearers of the Party are
elected. Primary unit of the Party elects District Congress while District Congress elects the deputies of the
Congress of the upper level.
Party members enjoy right to criticize party leadership and may initiate proposals for framing party policies. On
the same pattern, primary party branches may lodge complaints for the consideration of higher leadership.
On the other hand, strict party discipline is maintained and strong centralism operates in the decision-making
process. It is obligatory on the lower ranked party members to abide by the decisions of the higher ranked party
leadership. In practice, most of the decisions are thrust upon by the higher ranks within the central leadership.
Politburo
The Politburo has been regarded as the most powerful body in the decision-making process, as it makes all-
important decisions; so much so that it summons the sessions of the Central Committee. It also has a Standing
Committee consisting of seven members. Like its counterpart within the government, the Standing Committee of
the Politburo exercises all the powers of the Central Committee when the latter is not in session.
National Congress of the Communist Party of Congress
National Congress of the Communist Party of Congress holds a pivotal position in the policy-making of the Party.
Members of the Congress numbering in thousands with no fixed size are elected by the respective regional and
local party congresses for a period of five years.
Central Committee
The National Congress of the Communist Party of Congress holds its sessions for a few days, once every five
years. The Central Executive Committee, comprising limited membership, exercises the power of the Congress
when the latter is not in session. The powers of the Central Executive Committee are also exercised in practice,
by its Politburo, as the former rarely holds its meetings. The Central Committee elects the members of its
Politburo, as well as its Chairman and Vice Chairman.
Other Parties and Groups
Single party system, on the lines of Soviet Union, has not been adopted in the People’s Republic of China; rather
such smaller parties, as Kumintang Revolutionary Committee, Democratic League, National Construction
Association and various Youth Organizations are allowed to function. Hence, China is a multi-national and multi-
party country. In China, the term democratic parties refer to the eight other parties apart from the Chinese
Communist Party. These have developed cooperation with the Chinese Communist Party on different levels,
since the inception of the new order.
But, the Communist Party enjoys political monopoly in China, while other parties have merely dejure existence.
Party Organization runs parallel to that of the government. A person holding important position as a public
official is also assigned office within the Party. The Central leadership of the Party is mainly responsible for
chalking out government policies. The importance of any government department can’t be assessed keeping in
view merely its legal status, since its role within the Party matters.
5] French Constitution
5.1 Introduction
• France is known as ‘Laboratory of Political experiment’.
• It has a unitary form of government and nature of the government is called as semi-Presidential type
• It has some features of Parliamentary system and others of Presidential system
• The French Parliament does not have supremacy even in law making. There is a list for which the
legislature can make laws, whereas rest of the matters are taken care of by the President (i.e. he makes
the laws).
• This is perhaps the only Democratic Constitution based on the Principle of Supremacy of Executive.
• France suffered from political instability. Hence, the Constitution of the 5th Republic provides a strong
President, with a fixed term of 5 years, and he enjoys a lot of powers.
5.2 President
• The French President is the most powerful within the French system as well as amongst all other
executive across world democracies
• Privileges of the Office of the President of US, i.e. security of tenure and being the head of the
Government as well as head of the State is combined with the privileges of the Office of the British P.M.
i.e. power to dissolve the Assembly (which the American President doesn’t enjoy)
• France has PM as well as President
o French PM, unlike that in India and Britain, is assistant to the President
o There is a division of functions, rather than division of power between the two positions
The French President deals with foreign policy and national concerns
The PM, on the other hand, deals with day to day routine functions of the Government and local
domestic issues
• PM is appointed by the President
o The President doesn’t have a completely free-hand in PM’s election
o The person appointed as PM must enjoy the confidence of the House
• Concept of ‘Cohabitation’
o A situation where the President and the PM belong to different political parties
• PM may choose his cabinet colleagues
• None of the members of the Govt. can be a part of the legislature
• Cabinet is presided over by the President
• The Lower House can pass the ‘Censure Motion’ against the PM and his CoM, which would imply that
they must resign
• The President is elected for a fixed term. Initially the term was 9 years, reduced to 7 years and at present
is 5 years.
• They follow Second Ballot system (i.e. absolute majority of the total votes polled is needed)
o The President of the Republic shall be elected by an absolute majority of votes polled: if in the first
round of elections, no person gets absolute majority only the top two candidates remain and the
rest are eliminated. Second round of election takes place, in which one person is able to get the
absolute majority.
Removal of the President
• The President can be impeached on the same ground as the US President. However, the process is
ambiguous.
• Article 67 of the Constitution suggests that both the Houses should pass identical motion.
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• After this, the President’s case will be dealt with by a special body called the High Court of Justice.
• This body also trails cases of corruption and conspiracies against the state by government ministries.
Emergency Powers of the President
Article 16 of the Constitution gives the real emergency powers to the President. In this situation he assumes
unlimited powers and it is like democratic dictatorship or democratic coup-detat.
Comparative Analysis of the US and French Presidents
• The US President cannot dissolve the Assembly, whereas the French President can do so. The only
limitation is that he can’t do so more than twice a year.
• Unlike the US President, the French President can assume dictatorial powers under Article 16.
• The British P.M. can remain in office only as long as he enjoys majority in the lower house. The President
of France, on the other hand, is elected for a fixed term.
5.3 The Legislature
The Legislature is clearly subordinate to the Executive in the French system. Article 37 of the Constitution puts
clear limitation on the legislative power of the French Parliament. It mentions that the Parliament can make laws
only on the matters enumerated in the Constitution. On all other matters, the government can make laws by
simple order or decree.
The President can directly influence the legislative functions of the assembly through the P.M. If the assembly
doesn’t agree to a particular bill, it can be given for referendum by the President.
The French Parliament is bicameral, consisting of two houses: National Assembly and the Senate
5.3.1 National Assembly
As is the case with other bicameral Parliaments, the French bicameralism is an unequal system since the
National Assembly has much broader powers than those of the Senate:
• It alone can hold the Government accountable by refusing to grant it ‘confidence’ or by passing a censure
motion (following the same idea, only the National Assembly can be dissolved by the President of the
Republic).
• In the case of disagreement with the Senate, the Government can decide to grant the National Assembly
“the final say” in the legislative procedure (except for constitutional acts and institutional acts concerning
the Senate);
• The Constitution provides the National Assembly with a more important role in the examination of the
finance bill and the social security financing bill. Thus, the tabling for a first reading of such bills must be
before the National Assembly and the time limits granted for their examination are much longer for the
National Assembly.
5.3.2 The Senate
In contrast to the National Assembly, the Senate cannot be dissolved. The fact that Senate is a permanent body
plays an important role in accounting for the stability of the Government when the post of the French Republic’s
President falls vacant. Owing to above, it’s the President of the Senate who is appointed the President of French
Republic if the latter is prevented from doing so, if he falls ill or resigns. Thus, a case of power vacuum is
prevented, in case the President’s office falls vacant.
This interim is limited to the time needed to organize a presidential election (in practice, it lasts around 50 days).
5.4 Prominent Features of the French Constitution
• Organic Law: An organic or fundamental law is one that forms the foundation of a government or
organization. A Constitution is a particular form of organic law for a sovereign state. The French
Constitution has certain laws mentioned as organic laws. Laws made by the Parliament and the orders of
the Executive must confirm to the Organic laws. So these laws have to be reviewed by a body known as
the Constitutional Council. It has 9 members – three are representatives of the President, three are
representatives of the French National Assembly, and the remaining three are representatives of the
Senate.
• High Council of Justice: The purpose is the nomination of the judges. This body is headed by the
President and the members of the Judiciary. The President is also known as the ‘guardian of Judiciary’.
• Economic and Social Council: Constitutional advisory body on social and economic issues.
5.5 Amendment of the Constitution
• Rigid process
• Both the Houses of Parliament have to pass a resolution by 3/5th majority.
• The President may also choose to refer the amendment to people by referendum.
6] Germany’s Constitution
• Germany is a federation and the residuary powers in Germany lie with the states.
• The states are referred to as ‘Landers’.
• It has a Parliamentary form of Government, modeled on the British Parliamentary form. But it is not just a
replicate of the system.
• Germany is called as ‘Chancellor’s Democracy’.
• Chancellor is the PM.
• President is the Constitutional Head.
6.1 Salient Features
6.1.1 Chancellor’s Democracy
• The Chancellor has a clear-cut superiority over other Ministers.
• Chancellor Principle: Chancellor has a privilege to determine the broad policy and other ministers are
expected to act as per these guidelines. While a minister works under these guidelines, he enjoys a lot of
autonomy with respect to his department.
This mechanism ensures the stability of the coalition government.
6.1.2 Cabinet Principle
It comes into existence only when there is a dispute among different departments. In such a situation decision is
taken collectively.
6.1.3 Constructive Vote of No-Confidence
• The motion of no-confidence against the Chancellor is permitted only when those bringing the notion can
prove that they are in a position to form an alternative government.
• This is also to deal with the problems of Hung Assembly (Coalition Government)
6.1.4 Parliament
Germany has two houses:
The Bundestag
The lower house in the German political system is the Bundestag. Its members are elected for a four-year term.
The method of election is known as Mixed Member Proportional Representation (MMPR), a more complicated
system than First-Past-The-Post (FPTP), but one which gives a more proportional result (a variant of this system
known as the additional member system is used for the Scottish Parliament and the Welsh Assembly).
Manner of Elections
Half of the members of the Bundestag are elected directly from 299 constituencies using the first-past-the post
method of election. The other half – another 299 - are elected from the list of the parties on the basis of each
Land (the 16 regions that make up Germany).
This means that each voter has two votes in the elections to the Bundestag:
• The first vote allows voters to elect their local representatives to the Parliament and decides which
candidates are sent to Parliament from the constituencies.
• The second vote is cast for a party list and it is this second vote that determines the relative strengths of
the parties represented in the Bundestag.
The 598 seats are only distributed among the parties that have gained more than 5% of the second votes or at
least 3 direct mandates. Each of these parties is allocated seats in the Bundestag in proportion to the number of
votes it has received.
Reason behind adopting the above Election System
This system is designed to block membership of the Bundestag to small, extremist parties. As a consequence,
there are always a small number of parties with representation in the Bundestag.
Overhang Seat
In addition to the above, there are certain circumstances in which some candidates win what is known as an
‘Overhang Seat’, when the seats are being distributed. This situation occurs if a party has gained more direct
mandates in a Land than it is entitled to, according to the results of the second vote, when it does not forfeit
these mandates because all directly elected candidates are guaranteed a seat in the Bundestag.
Comparative analysis of Bundestag
One striking difference when comparing the Bundestag with the American Congress or the British House of
Commons is the lack of time spent on serving constituents in Germany.
This is so because:
• Only 50% of Bundestag members are directly elected to represent a specific geographical district.
• A serving constituency seems not to be perceived, either by the electorate or by the representatives, as
a critical function of the legislator.
• There is also a practical constraint on the expansion of constituent service in the form of a limited
personal staff of Bundestag members (especially compared to members of the US Congress).
The Bundestag
The upper house in the German political system is the Bundesrat.
At a first glance, the composition of the Bundesrat looks similar to other upper houses in federal states such as
the US Congress, since the Bundestag is a body representing all the German Lander (or regional states).
However, there are two fundamental differences in the German system:
1. Its members are not elected (neither by popular vote nor by the State Parliaments). They are members
of the State Cabinets, which appoint them and can remove them at any time. Normally, a state
delegation is headed by the head of government in the Land, known in Germany as the Minister-
President.
2. The States are not represented by an equal number of delegates, since the population of the respective
state is a major factor in the allocation of votes (rather than delegates) to each particular Land. The vote
allocation can be approximated as 2.01 + the square root of the Land's population in millions with the
additional limit of a maximum of six votes so that it is consistent with something called the Penrose
method based on game theory. This means that the 16 states have between three and six delegates.
This unusual method of composition provides for a total of 69 votes (not seats) in the Bundesrat. The State
Cabinet may then appoint as many delegates as the state has votes, but is under no obligation to do so; it can
restrict the state delegation even to one single delegate. The number of members or delegates representing a
particular Land does not matter formally, since in stark contrast to many other legislative bodies, the delegates
to the Bundesrat from any one state are required to cast the votes of the state as a bloc (since the votes are not
those of the respective delegate). This means that in practice it is possible (and quite customary) that only one of
the delegates (the Stimmführer or "leader of the votes" - normally the Minister-President) casts all the votes of
the respective state, even if the other members of the delegation are present in the chamber.
Even with a full delegate appointment of 69, the Bunsderat is a much smaller body than the Bundestag with over
600 members. It is unusual for the two chambers of a bicameral system to be quite so unequal in size. But the
Bundesrat has the power to veto a legislation that affects the powers of the states.
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7] Constitution of Japan
• Japan has a Parliamentary system of Government.
• It has a constitutional Monarchy
o King is more like a ‘Rubber stamp’ authority while PM is head of the Cabinet
• Election of the PM
o PM is elected by both the Houses of Japanese Parliament (called Diet).
o The two houses of the Diet are:
House of Representatives; and
House of Councillors
o It is not enough for a person to be a leader of the majority party. He has to be elected by both the
houses of the Parliament.
If no agreement is reached upon between the two houses on a candidate, then the matter is
taken care of by a Joint Committee of both the houses. The Committee gets 10 days to arrive
upon a decision.
After 10 days, if an agreement cannot be reached, then the will of the lower house prevails.
• A significant feature of Japanese Constitution is contained in Article 9.
o Herein, Japan formally renounces the policy of war for the settlement of international disputes.
However, it can keep forces for self-defence.
8] Constitution of Canada
The Canadian Constitution encompasses a wide set of principles and values that govern key political
relations in the Canadian society.
8.1 Salient Features
8.1.1 Constitutional Monarchy
• It is the central component of Canada’s constitutional framework.
• The Constitution Act, 1867 states that executive government and authority in Canada is vested in
the Canadian Monarchy (which Canada shares with Great Britain and some other former British
colonies). The British Queen is the formal head of the state.
o The Act further provides for the offices of the Governor General of Canada (at the federal level)
and Lieutenant Governors (at the provincial level), recognized as the Monarch’s representatives in
Canada.
• It is important to note, however, that while the written constitution explicitly places executive authority
in the hands of the Monarch and his/her representatives, the unwritten constitutional convention holds
that this authority is actually exercised by the Prime Minister and his/her Cabinet.
8.1.2 Parliamentary Government
The Canadian Constitution also provides for a Parliamentary system of government.
Features of Parliamentary Government as given in Constitution Act, 1867:
• The Act established a federal Parliament, consisting of the Monarchy and two legislative chambers,
the House of Commons (or Lower House) and the Senate (or Upper House).
• The Act further states that the powers and authority of these legislative chambers are to be modeled
upon those found in the British Parliament.
• Further, the Act also established legislative chambers at the provincial level.
In addition to the written provisions of the Act, there also exist several unwritten constitution conventions that
are fundamental to the operation of Canada’s parliamentary system. These include executive dominance by the
Prime Minister and the Cabinet (at the federal level) and by the Premier and the Cabinet (at the provincial
level), as well as the practice of responsible government.
8.1.5 Rights
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada, which
forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian
citizens and civil rights of everyone in Canada. The Charter applies to government laws and actions (including the
laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to
the common law, but not to private activity.
The courts, when confronted with violations of Charter rights, have struck down as unconstitutional, federal and
provincial statutes and regulations in whole or in part.
9] Constitution of Australia
Australia’s system of government is founded in the liberal democratic tradition. Based on the values of religious
tolerance, freedom of speech and association, and the rule of law, Australia’s institutions and practices of
government reflect British and North American models. At the same time, they are uniquely Australian.
• Australian federation is modeled on the US federation. For example, residuary powers are with the
states, Governors of the states are elected by the people and formally appointed by the British Queen.
• In Australia, there has been a growth of Cooperative Federalism.
9.1 Salient Features
9.1.1 Form of Government
One of the oldest continuous democracies in the world, the Commonwealth of Australia was created in 1901,
when the former British colonies—now the six states—agreed to federate. The democratic practices and
principles that shaped the pre-federation colonial Parliaments (such as ‘one man, one vote’ and women’s
suffrage) were adopted by Australia’s first federal government.
The Australian Constitution sets out the powers of government in three separate chapters—the legislature, the
executive and the judiciary—but insists that members of the legislature must also be members of the executive.
In practice, Parliament delegates wide regulatory powers to the executive.
The popularly elected Parliament consists of two chambers: the House of Representatives and the Senate.
Ministers appointed from these Chambers conduct executive government, and policy decisions are made in
Cabinet meetings. Apart from the announcement of decisions, Cabinet discussions are not disclosed. Ministers
are bound by the principle of Cabinet solidarity, which closely mirrors the British model of Cabinet government
responsible to the Parliament.
Although, Australia is an independent nation, Queen Elizabeth II of Great Britain is also formally the Queen of
Australia. The Queen appoints a Governor-General (on the advice of the elected Australian Government) to
represent her. The Governor-General has wide powers, but by convention acts only on the advice of the
ministers on virtually all matters.
9.1.2 Nature of the Constitution
Like the United States, Australia has a written constitution. The Australian Constitution defines the
responsibilities of the federal government, which include foreign relations, trade, defence and immigration.
Governments of the States and territories are responsible for all matters not assigned to the Commonwealth,
and they too adhere to the principles of responsible government. In the States, the Queen is represented by a
Governor for each State.
The High Court of Australia arbitrates on disputes between the Commonwealth and the states. Many of the
court’s decisions have expanded the constitutional powers and responsibilities of the federal government.
Procedure of Amendment
The Australian Constitution can be amended only with the approval of the electorate through a national
referendum in which all adults on the electoral roll must participate. A bill containing the amendment must first
be passed by both houses of Parliament, or, in certain limited circumstances, by only one House of Parliament.
Any constitutional change must be approved by a double majority—a national majority of electors as well as a
majority of electors in a majority of the states (at least four of the six). Where any state or states are particularly
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affected by the subject of the referendum, a majority of voters in those states must also agree to the change.
This is often referred to as the ‘triple majority’ rule.
The double majority provision makes alterations to the Constitution difficult. Since federation in 1901, only eight
out of 44 proposals to amend the Constitution have been approved. Voters are generally reluctant to support
what they perceive as increases in the power of the federal government. States and territories may also hold
referendums.
9.1.3 Parliament
The government is formed in the House of Representatives by the party able to command a majority in that
chamber.
Minority parties often hold the balance of power in the Senate, which serves as a chamber of review for the
decisions of the government. Senators are elected for six-year terms, and in an ordinary general election only
half the senators face the voters.
In the Australian Parliament, questions can be asked without notice, and there is a strict alternation between
Government and Opposition questions to ministers during the Question Time. The Opposition uses its questions
to pursue the government. Government members give ministers a chance to put government policies and
actions in a favourable light, or to pursue the Opposition.
Anything said in the Parliament can be reported fairly and accurately without fear of a suit for defamation. The
rough-and-tumble of Parliamentary Question Time and debates is broadcast and widely reported. This has
helped in establishing Australia’s reputation for robust public debate, and serves as an informal check on the
executive power.
9.1.4 Nature of Elections
A national general election must be held within three years of the first meeting of a new federal Parliament. The
average life of Parliaments is about two-and-a-half years. In practice, general elections are held when the
Governor-General agrees to a request from the Prime Minister, who selects the date of the election.
The governing party has changed almost every five years on an average, since federation in 1901. The Liberal
Party led a coalition with the longest hold on government—23 years—from 1949 to 1972. Prior to World War II,
several governments lasted less than a year, but since 1945 there have been only seven changes in the
government.
9.1.5 Voting
For all citizens over the age of 18 it is compulsory to vote in the election of both federal and state governments,
and failure to do so may result in fine or prosecution.
9.1.6 Relations between Levels of Government
State parliaments are subject to the national Constitution as well as their state constitutions. A federal law
overrides any state law not consistent with it.
In practice, the two levels of government cooperate in many areas where states and territories are formally
responsible, such as education, transport, health and law enforcement. Income tax is levied federally, and
debate between the levels of governments about access to revenue and duplication of expenditure functions is a
perennial feature of Australian politics. Local government bodies are created by legislation at the state and
territory level.
The Council of Australian Governments (COAG) is a forum to initiate, develop and implement national policy
reforms requiring cooperative action between the three levels of government: national, state or territory, and
local. Its objectives include dealing with major issues by cooperating on structural reform of government and on
reforms to achieve an integrated, efficient national economy and a single national market.
• COAG comprises the Prime minister, State Premiers, Chief Ministers of the territories, and the President
of the Australian Local Government Association.
In addition, Ministerial Councils (comprising national, state and territory ministers, and, where relevant,
representatives of local government and of the governments of New Zealand and Papua New Guinea) meet
regularly to develop and implement inter-governmental action in specific policy areas.
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The Cabinet Ministers are at the disposal of PM and can be dismissed at any time on advice of the PM, by the
Head of the State.
11.5 Bicameral System of Parliament
A bicameral Parliament or bicameral legislature is a legislature, which consists of two chambers or houses
• In England: There is the House of Commons and House of Lords.
• In India: There is Lok Sabha (the House of people) and Rajya Sabha (Council of States).
11.6 Concept of Lower House being more Powerful
In England In India
House of Lords (the Upper House) is restrained Money Bills can only be introduced in Lok Sabha
from any financial bills.
PM loses his post if he loses majority in the PM loses his post if he loses majority support in lower
House of Commons. house, motion of no confidence can only be introduced in
Lok Sabha.
Upper House can only delay the bills passed in With most of the bills (except CAB), Rajya Sabha cannot
Lower House for a maximum of two reject bills passed in Lok Sabha. It can only delay it for a
parliamentary terms, but cannot reject it. maximum of 14 days.
11.7 Speaker in the Lower House
In England In India
The Speaker of the House of Commons chairs debates The Speaker of the Lok Sabha conducts the business
in the Commons chamber and the holder of this office in the house.
is an MP who has been elected by other members of
Parliament.
The Speaker is the chief officer and highest authority He/she decides whether a bill is a money bill or a
of the House of Commons and must remain politically non- money bill.
impartial at all times. During debates they keep order
and call MPs to speak.
The Speaker also represents the Commons to the He/she maintains discipline and decorum in the
monarch, the Lords and other authorities and chairs house and can punish a member for their unruly
the House of Commons Commission. behaviour by suspending them.
He/she permits the moving of various kinds of
motions and resolutions like motion of no
confidence, motion of adjournment, motion of
censure and calling attention notice as per the rules
Supreme court mainly acts as an appellate court, Supreme court mainly acts as an appellate court, most
most hearings being appeals and hearings being hearings being appeals and hearings being petitions
petitions against unsatisfactory decisions of against unsatisfactory decisions of lower courts.
lower courts.
legislative fields. One cannot strictly trench upon the other’s area of power. Each is confined to its own
sphere.
6. The State, if wants, can theoretically separate itself from the Federal, the relation being based only an
‘Agreement ’.Hence, it is said that the American Union is a destructible Union of indestructible States.
7. The States have residuary powers.
8. There are two Constitutions.
9. There are different civil and criminal laws, differing from State to State.
10. The word “Federal” is used in the Constitution very often.
11. The Supreme Court of America has not been given appellate jurisdiction of the same kind as the
Supreme Court in India.
12. For the amendment of Federal Constitution, a referendum must be conducted. Amendment to the
Constitution can be made only with the consent of the people.
11.12 Freedom of Trade and Commerce
Australia India
There is a free trade clause under Section 92 of the Article 301 containing the free trade clause in Indian
Australian Constitution, which provides that “on the constitution has been taken almost verbatim from
imposition of uniform duties of customs, trade, section 92 of the Australian constitution
commerce and intercourse among the States whether
by means of internal
carriage or ocean navigation shall be absolutely free.
The court considered that legislature should be
given more powers than judiciary and all trade and
commerce activities were subjected to reasonable
restrictions, imposed by the State as mentioned in
the constitution
Section A Introduction
democratic countries
others
Section F Conclusion
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SECTION A: INTRODUCTION
“If men were angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be necessary. In
framing a government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.”
The above statement defines the importance and need of a constitution for a country. A
constitution is the highest law of a country and reflects the fundamental principles on which a
system of government and administration of a country is based.
The term constitution comes through French from the Latin word constitutio, used for
regulations and orders, such as the imperial enactments.
A constitution of a country needs to reinvent itself to keep pace with the global changes. Hence,
comparative analysis gains importance in this respect. However, before going into the details of
that, a cursory glance at various political systems in the world needs attention.
2. Democracy is the government by the people, exercised either directly or through elected
representatives.
4. Anarchy is the absence of government; the state of society where there is no law or
supreme power; a state of lawlessness; political confusion.
From the above diagram, it can be inferred that comparison of Indian constitution with other democratic countries
like USA,UK, Japan, France, Russia and Germany will serve the purpose of comparative analysis.
The United States of America is a federal republic consisting of fifty states and a federal district.
Constitution of UK
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United
Kingdom (UK) and Britain, is a sovereign state located off the north-western coast of continental
Europe. The country includes the island of Great Britain, the north-eastern part of the island
ofIreland and many smaller islands.
The UK's form of government is a constitutional monarchy with a parliamentary system and
its capital city is London. It consists of four countries: England, Scotland, Wales and Northern
Ireland.
Characteristics or features of the U.K. constitution:
1. The Constitution is not `written' in the sense of having a single document defining the
powers of government and rights of individuals. Nevertheless many sources of
constitutional law are written and these together with the non-legal rules make up the
British Government.
2. The constitution is flexible and based on continuity of development.
3. In the absence of a written constitution having the status of fundamental, or higher law,
the concept of Parliamentary sovereignty, or legislative supremacy represents the
cornerstone of the constitution.
4. There is no strict separation of powers between the executive, legislature and judiciary,
although a separation of functions exists and the concept retains importance under the
constitution.
5. The United Kingdom has a constitutional monarchy.
6. The United Kingdom is a unitary, as opposed to a federal state.
7. The legislature is bicameral in nature.
8. The judiciary is independent.
Constitution of France
The current Constitution of France was adopted on 4 October 1958. It is typically called the
Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946 .
Since then the constitution has been amended eighteen times, most recently in 2008.
1. The preamble of the constitution recalls the Declaration of the Rights of Man and of the
Citizen from 1789 and establishes France as a secular and democratic country, deriving
its sovereignty from the people.
2. It provides for the election of the President and the Parliament, the selection of the
Government, and the powers of each and the relations between them.
3. It ensures judicial authority and creates a High Court (a never convened court for
judging the President), a Constitutional Council, and an Economic and Social Council. It
was designed to create a politically strong President.
4. It enables the ratification of international treaties and those associated with the
European Union.
5. The Constitution also sets out methods for its own amendment either by referendum or
through a Parliamentary process with Presidential consent.
Constitution of Russia
1. The Russian Constitution is based on world standards for human rights and basic
principles of democratic state-building such as ideological neutrality of the
state, political pluralism, competitive elections and separation of powers.
Constitution of Germany
1. The Basic Law for the Federal Republic of Germany (German: Grundgesetz für die
Bundesrepublik Deutschland) is the Constitution of Germany. It was approved on 8 May
1949, and, with the signature of the western Allies of World War II on 12 May, came into
effect on 23 May.
2. Basic rights are fundamental to the Basic Law, in contrast to the Weimar Constitution,
which listed them merely as "state objectives”.
3. The Basic Law established Germany as a parliamentary democracy with separation of
powers into executive, legislative, and judicial branches.
4. The executive branch consists of the largely ceremonial Federal President as head of
state and the Federal Chancellor, the head of government, normally (but not necessarily)
the leader of the largest grouping in the Bundestag.
5. The legislative branch is represented by the Bundestag, elected directly through a
mixture of proportional representation and direct mandates.
6. The judicial branch is headed by the Federal Constitutional Court, which oversees the
constitutionality of laws.
7. Basic Law may be amended by an absolute two-thirds majority of the Bundestag along
with a simple two-thirds majority of the Bundesrat
8. Germany has switched between confederal, federal and unitary rule, since the German
Confederation was founded in 1815. The current Germany is a federal system of states.
Constitution of Japan
Japan is a constitutional monarchy where the power of the Emperor is very limited. As a
ceremonial figurehead, he is defined by the constitution as "the symbol of the state and of the
unity of the people"
Constitution of India
The constitution of India was framed by the Constituent Assembly, set up in 1946 under the
provisions of cabinet mission plan. Dr. Rajendra Prasad was the president of Constituent
assembly and Dr. B.R. Ambedkar was the Chairman of the seven –member Drafting Committee
which drafted the constitution.
The Indian constitution is the lengthiest and most detailed written constitution in the world.
Though most of the features of our constitution are substantially borrowed from others, the
framers gathered the best features of each of the existing constitutions and modified them
according to the existing needs and conditions of the country.
The preamble of the constitution declares India a sovereign, Socialist, Secular, and democratic
republic. It highlights justice, liberty, equality and fraternity as objectives of the constitution.
Parts
The individual Articles of the Constitution are grouped together into the following Parts:
Part I – Union and its Territory Part XI – Relations between the Union and the
States.
Suits
Part III – Fundamental Rights Part XIII – Trade and Commerce within the
territory of India
Part IV – Directive Principles of State Policy Part XIV – Services under the Union, the
States.
certain Classes.
schedule
Part IXB – The Cooperative Societies Part XXI – Temporary, Transitional and
Special Provisions
Part X – The scheduled and Tribal Areas Part XXII – Short title, date of commencement,
Schedules
Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity
and policy of the Government.
First Schedule (Articles 1 and 4) - This lists the states and territories of India
Second Schedule (Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 and 221)- –
This lists the salaries of officials holding public office, judges, and CAG
Third Schedule (Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219)—Forms of Oaths –
This lists the oaths of offices for elected officials and judges
Fourth Schedule (Articles 4(1) and 80(2)) – This details the allocation of seats in the Rajya
Fifth Schedule (Article 244(1)) – This provides for the administration and control of Scheduled
Sixth Schedule (Articles 244(2) and 275(1))— Provisions for the administration of tribal areas
Seventh Schedule (Article 246)—The union (central government), state, and concurrent lists of
responsibilities
Ninth Schedule (Article 31-B) – Originally Articles mentioned here were immune from judicial
review on the ground that they violated fundamental rights. but in a landmark judgement in
2007, the Supreme Court of India held in I.R. Coelho v. State of Tamil Nadu and others that laws
included in the 9th schedule can be subject to judicial review if they violated the fundamental
rights guaranteed under Article 14, 15, 19, 21 or the basic structure of the Constitution.
Indian constitution has assimilated various features from other countries into its domain which
imparts it a special character.
1. Written Constitution
A written constitution is a formal document defining the nature of the constitutional settlement,
the rules that govern the political system and the rights of citizens and governments in a codified
form.
• India-Written and longest known constitution
• USA-Written. It’s a product of 1787 constitutional document and subsequent
amendments, the congressional statutes, executive orders, judicial interpretations and
the political conventions.
• Great Britain: British constitution is unwritten. Only small portion of British constitution
is covered by written documents. The British constitution is an evolved one and not
enacted one. Various sources of British constitution are: Conventions, Great Charters,
Statutes, Common Law, Legal Commentaries.
• France: Since French revolution France has changed its constitution quite often. The
present French constitution which established the Fifth republic is a written
constitution.
• Japan: Present constitution of JAPAN became operative in 1947.It is also a written
constitution.
2. Flexible or Rigid
A flexible Constitution is one that can be changed by ordinary law making process and the one
which requires a special procedure for amendment is called rigid.
• India: constitution is more flexible than rigid. It is only few the amendment of few of the
provisions of the constitution that requires ratification by state legislatures and even
then legislation by ½ states would suffice. The rest of the constitution could be amended
by a special majority by union parliament. But with the rise of regional parties and
coalition govt. even getting the legislation by half of the states is becoming difficult as is
evident in the issue relating to NCTC.
• USA: It has a rigid constitution. It can be amended by the congress by means of a special
process provided by the constitution for that purpose.
• Britain: Has flexible constitution. It requires no special procedure for its amendment and
can be amended by the parliament in the same manner as ordinary laws are made.
• France: Rigid Constitution-Needs Special procedure-60% majority votes in both the
house of parliament is needed. Alternatively President can call a national referendum on
constitutional amendment.
3. Unitary or Federal
In a parliamentary form of govt executive is responsible to legislature for its policies and acts. In
presidential form of government the executive is completely separated from the legislature and is
not accountable to legislature.
1. India: The constitution of India provides for a parliamentary form of govt both at the centre
and in states. The parliamentary system of GOI is largely based on the British parliamentary
system.
• Principles of parliamentary govt of India:
o Nominal and Real executives: President is the nominal executive and prime
minister is real executive.
o Majority party rule: The political party which secures majority seats in lok sabha
forms the govt.
o Collective responsibility: The ministers are collectively responsible to the
parliament/Lok sabha.
o Double membership: Ministers are members of both, legislature and executive.
o Dissolution of the lower house: The lower house can be dissolved on the
recommendation of prime minister.
2. USA: Has presidential form of govt. with following features:
o President is both head of state and head of govt.
o The president is elected by an electoral college for a fixed tenure of four years
and can’t be removed by congress except by process of impeachment for a grave
unconstitutional act.
o President governs with the help of a Cabinet, an advisory body whose members
are selected and appointed by him and can be removed by him at any time.
o The president cannot dissolve the ‘house of representatives’ – lower house of
congress.
o The president and his secretaries are not responsible to congress for their acts.
3. Great Britain: Has parliamentary form of govt where King is the nominal executive.
4. France: Has quasi presidential and quasi prime ministerial .On one hand, it provides for a
powerful president who is directly elected by the people for a seven year term. On the other
hand, there is a nominated council of ministers headed by prime minister which is
responsible to the parliament.
5. Japan: Has parliamentary system with largely British parliamentary features except for the
following:
o The prime minister is chosen as well as appointed by king/queen but in Japan
PM is chosen by Diet but appointed by emperor.
A REPUBLIC is a form of government, and any state so governed, where the MONARCH (King or
Queen) is not in fact or law or constitutionally the head of state. In essence, the word REPUBLIC
connotes ownership and control of a given state by the population at large. The head of state of a
REPUBLIC is usually held by one person, a President (e.g.: the U.S.A., Trinidad, France, Guyana)
who may be appointed or elected by the Prime Minister or the populace at large respectively;
depending on the constitutional arrangements and essentials.
7. President
1. India: The President of India is the nominal head of state of the Republic of India.
• The real executive being council of ministers headed by Prime minister. He/She has to
exercise his powers and functions with the aid and advice of council of ministers headed
by PM.(Art 53, 74,75)
• The President is indirectly elected by the people through elected members of
the Parliament of India (Lok Sabha and Rajya Sabha) as well as of the state legislatures
(Vidhan Sabhas), and serves for a term of five years.
• President can be removed from his/her office before completion of term by
impeachment for violation of constitution.
2. USA: The President of the United States of America is the head of state and head of
government of the United States.
• The president leads the executive branch of the federal government and is
the commander-in-chief of the United States Armed Forces.
• Constitutionally president is elected by an electoral college constituted by an electoral
college constituted for the purpose. The members of this college are elected directly by
the people of all the states .The College is a special body which is formed only for
electing the president and gets dissolved after elections. The American presidency is one
of the strongest democratic office in the world.
• President holds his office for a fixed term of 4 years. He is eligible for re election but only
once. He can be removed from his office before expiry of his term through impeachment
proceedings for treason, bribery or other high crimes. The house of representatives
initiates the impeachment proceedings by a majority vote. The case is then tried by
Senate. If the senate also passes the impeachment resolution by a two-thirds majority,
president stands impeached.
• Article II of the U.S. Constitution vests the executive power of the United States in the
president and charges him with the execution of federal law, alongside the responsibility
of appointing federal executive, diplomatic, regulatory, and judicial officers, and
concluding treaties with foreign powers, with the advice and consent of the Senate. The
president is further empowered to grant federal pardons and reprieves, and to convene
and adjourn either or both houses of Congress under extraordinary circumstances
3. France- The president is the pivot of the constitution and occupies a dominant position in
the system of govt. He is the real head of the state.
• The President is directly elected by suffrage.
• The length of the term was reduced from 7 yrs. A president cannot serve more than two
consecutive terms. The president can be removed from the office through an
impeachment process for high treason.
• The impeachment resolution should be passed by both houses of parliament by an
absolute majority.After this president is tried by high court of justice.
4. Germany-The President of the Federal Republic of Germany As Germany has
a parliamentary system of government with the Chancellor running the government, the
President has mainly ceremonial and supervisory duties.
• President can give direction to general political and societal debates and has some
important "reserve powers" in case of political instability
• All federal laws must be signed by the President before they can come into effect; he can
only refuse to sign a law that he believes to violate the constitution.
• The President is elected by the Federal Convention, a body established solely for that
purpose.
• While in office the president enjoys immunity from prosecution and cannot be voted out
of office or recalled. The only mechanism for removing the president is impeachment by
the Bundestag orBundesrat for willfully violating German law. Once the Bundestag
impeaches the president, the Federal Constitutional Court is charged with determining if
he or she is guilty of the offence. If the charge is sustained the court has authority to
remove the president from office.
8. Citizenship
1. India-The Indian citizenship and nationality law and the Constitution of India provide single
citizenship for all of India. The provisions relating to citizenship upon adoption of the
constitution are contained in Articles 5 to 11 in Part II of the Constitution of India. It does
not allow dual citizenship. But govt of India is increasingly becoming more flexible with
regards to its dual citizenship rules for persons with Indian origin(PIOs) and overseas citizens
of India.
2. USA- A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a
U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention
dual nationality or require a person to choose one citizenship or another. Also, a person who
is automatically granted another citizenship does not risk losing U.S. citizenship. However, a
person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In
order to lose U.S. citizenship, the law requires that the person must apply for the foreign
citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship.
3. UK-When becoming a British citizen one does not need to give up your present citizenship
or nationality to become a British citizen.One will not normally lose British nationality if
he/she becomes a citizen or national of another country.
4. France-Dual citizenship has been permitted since 1973. Possession of one or more other
nationalities, does not, in principle, affect the French nationality.
5. Germany- Dual citizenship is allowed under certain circumstances
6. Australia: With effect from 4 April 2002, there are no restrictions (under Australian Law) on
Australians holding the citizenship of another country.
Fundamental Rights
1. India- Indian constitution has certain fundamental rights modelled on American Bill of
Rights. But unlike USA fundamental rights in india are not absolute and hence govt can
impose reasonable restrictions on them. Whether the restrictions are reasonable or not is to
be decided by the courts.
The six fundamental rights recognised by the constitution are:
• Right to equality, including equality before law, prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth, and equality of opportunity in
matters of employment, abolition of untouchability and abolition of titles.
• Right to freedom which includes speech and expression, assembly, association or union
or cooperatives, movement, residence, and right to practice any profession or
occupation (some of these rights are subject to security of the State, friendly relations
with foreign countries, public order, decency or morality), right to life and liberty, right
to education, protection in respect to conviction in offences and protection against
arrest and detention in certain cases.
• Right against exploitation, prohibiting all forms of forced labour, child labour and traffic
in human beings;
• Right to freedom of religion, including freedom of conscience and free profession,
practice, and propagation of religion, freedom to manage religious affairs, freedom from
certain taxes and freedom from religious instructions in certain educational institutes.
• Cultural and Educational rights preserving Right of any section of citizens to conserve
their culture, language or script, and right of minorities to establish and administer
educational institutions of their choice.
• Right to constitutional remedies for enforcement of Fundamental Rights.
2. USA- The Bill of Rights lists specifically enumerated rights. The Supreme Court has extended
fundamental rights by recognizing several fundamental rights not specifically enumerated
in the Constitution
3. Similarly the constitution of USSR and Japan also guarantees certain fundamental rights. But
there are no such rights enumerated in the constitution of Great Britain.
Fundamental duties
1. India- Fundamental duties have been taken from USSR. No other major country has it.
Fundamental Duties are the ones that are recognized as moral obligations the citizens are
expected to perform. Article 51A under Part IV A of the Constitution of India speaks of the
Fundamental duties. One cannot enforce these fundamental duties legally. It was through
the 42nd Amendment that these duties were introduced in the Constitution.
There are 10 Fundamental duties that the citizens are expected to discharge. They are:
• The citizens of India are expected to be abide by the Constitution and respect all its
ideals. Likewise, the citizens are expected to respect the National Flag and the National
Anthem.
• The noble ideals that inspired our freedom struggle have to be cherished and followed.
• The sovereignty, unity and integrity of India needs to be upheld and protected.
• Citizens should be ready to defend and render national service towards India.
• The spirits of common brotherhood and harmony have to be promoted by all the
citizens wherein they need to transcend all forms of diversities pertaining to religion,
language and region. All the practices that are derogatory to the dignity of women have
to be renounced.
• India has a rich, varied and composite culture and one needs to preserve it.
• Natural environment including the forests, lakes, rivers and wildlife are expected to be
preserved by the citizens.
• People of India are expected to develop within themselves humanism, scientific
temperament, and spirits of inquiry and reform.
• Public property is expected to be safeguarded and violence needs to be avoided.
• People are expected to strive for the excellence of all the individuals and collective
activities to help in the development of the country.
Directive principles
The constitution of India contains certain directive principles (Part 4) which confer no
justiciable rights on individuals but are regarded to be fundamental in the governance of the
country-being in the nature of principles of social policy as contained in the Constitution of
Republic of Ireland.
DUE PROCESS - It is the legal requirement that the state must respect all of the legal rights that
are owed to a person and laws that states enact must confirm to the laws of the land like - fairness,
fundamental rights, liberty etc. It also gives the judiciary to access the fundamental fairness,
justice, and liberty of any legislation.
PROCEDURE ESTABLISHED BY LAW - It means that a law that is duly enacted by legislature or the
concerned body is valid if it has followed the correct procedure. Say a law enacted by Indian
legislature. Article 21 of Indian Constitution says that- 'No person shall be deprived of his life or
personal liberty except according to procedure established by law'.
Situation in India
In India, there is no mention of the word 'Due Process'. A strict literal interpretation of
Procedure established by Law give the legislative authority an upper hand and they may enact
laws which may not be fair from a liberal perspective.
However, in India a liberal interpretation is made by judiciary after 1978 and it has tried to
make the term 'Procedure established by law' as synonymous with 'Due process' when it comes
to protect individual rights. In Maneka Gandhi vs Union of India case (1978) SC held that -
'Procedure established by law' within the meaning of article 21 must be 'right and just and fair'
and 'not arbitrary, fanciful or oppressive' otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied. Thus, the 'procedure established by law' has
acquired the same significance in India as the 'due process of law' clause in America.
Due process is not used in contemporary English law, though two similar concepts are natural
justice (which generally applies only to decisions of administrative agencies and some types of
private bodies like trade unions) and the British constitutional concept of the rule of law as
articulated by A. V. Dicey and others. However, neither concept lines up perfectly with the
American theory of due process.
o National Emergency
o State Emergency-Earlier it was misused quite often but with judicial ruling in SR
BOMMAI case and rise of regional parties its no longer misused.
o Financial Emergency-This type of emergency has never been declared so far.
• Grounds for Proclamation of Emergency: Before the 44th amendment to the
Constitution of India, the following are the grounds under which the President can
proclaim emergency:
o War
o External Aggression
o Armed Rebellion
2. Australia-Unlike India, State-of-emergency legislation differs in each state of Australia.
3. Canada- The federal government of Canada can use the Emergencies Act to invoke a state of
emergency. A national state of emergency automatically expires after 90 days, unless
extended by the Governor-in-Council. There are different levels of emergencies: Public
Welfare Emergency, Public Order Emergency, International Emergency, and War
Emergency.
4. France- Three main dispositions concern various kind of "state of emergency" in France:
article 16 of the Constitution of 1958 allows, in time of crisis, "extraordinary powers" to the
president. Article 36 of the same constitution regulates "state of siege" .Finally, the April 3,
1955 Act allows the proclamation, by the Council of Ministers, of the "state of emergency"
The state of emergency in France is framed by the Constitution of 1958, which states that it
can be decreed by the president in the Council of Ministers, but must be confirmed by
Parliament in order to be held after 12 days.
5. Germany-In the post-war Federal Republic of Germany the Emergency Acts state that some
of the basic constitutional rights of the Basic Law may be limited in case of a state of
defence, a state of tension, or an internal state of emergency or disaster (catastrophe).
6. United States-In the United States, there are several methods for government response to
emergency situations.
• A state governor or local mayor may declare a state of emergency within his or
her jurisdiction. This is common at the state level in response to natural disasters.
• The president of the United States, as head of the executive branch, has the authority to
declare a federal state of emergency. The only emergency provisions in the U.S.
Constitution are: "The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it.
Dual Citizenship Not recognised Recognised Recognised Recognised Not Recognised In principle, not
Recognised recognized.
The working of the constitution has stood the test of the time but certain recent developments
such as fragmented polity, rise of regional political parties and governments formed by regional
parties in the states, for eg in Tamil Nadu, Bihar, W Bengal etc has posed new challenges for the
centre-state relations. Similarly, the advent of coalition govt post late 1980’s has raised certain
questions for which constitution provides either ambiguous answers or no answers at all.
Considering the complexities and huge quantum of the task of modern day govt and changing
nature of Indian politics there is a need to review and amend the constitution. Some of the areas
in which changes are required are:
1. Eligibility of legislators: Those candidates facing corruption and criminal charges should not
be allowed to contest the elections.
2. Frequent disruptions of parliamentary sessions have become the norm of the day. Minimum
hours for which parliament have to work should be incorporated in the constitution.
3. Changes in civil services rules to ensure impartiality and neutrality.
4. The fundamental rights under part III of our constitution too need to include many of those
rights that have developed over a history of various judicial pronouncements. These rights
though not really stated in part III have been recognized as fundamental in nature and are
better known as ‘implied fundamental rights’. For eg: Right to food, right to livelihood, right
to clean potable drinking water, right to fresh and clean environment.
Hence, today if it’s getting harder to run the constitution then the problem does not lie in the
constitution but in the “working” of the constitution. As the architect of Indian Constitution said
that:
“Indeed, if I may say so, if things go wrong under the new Constitution, the reason will
not be that we had a bad Constitution. What we will have to say is, that Man was vile.”
– Dr. B.R. Ambedkar, November 4, 1948
2. Indian constitution is a ‘slavish imitation of the west’. Do you agree? Give reasons
with examples.
Sources:
1. D D Basu
2. M Laxmikanth
4. Wikipedia
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CONTENT
6. Attorney General
8. Finance Commission
The Constitution of India has vested in the Election Commission (EC) of India the superintendence, direction and control
of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President
and Vice-President of India.
Originally, the commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner
and two Election Commissioners. For the first time two additional Commissioners were appointed on 16th October 1989
but they had a very short tenure till 1st January 1990. Later, on 1st October 1993 two additional Election Commissioners
were appointed. The concept of multi-member Commission has been in operation since then, with decision making power
by majority vote.
No election to either House of Parliament or either House of the Legislature of a State shall be called in question
except by an election petition. Any elector or candidate can file an election petition on grounds of malpractice during
the election. In respect of elections to the Parliament and State Legislatures they can only be filed before the High
Court and in respect of elections for the offices of President and Vice-President, such petitions can only be filed before
the Supreme Court.
1. EC shall consist of the chief election commissioner and such number of other election commissioners, if any, as the
president may from time to time fix (presently CEC + 2 ECs)
2. The appointment of the chief election commissioner and other election commissioners shall be made by the president
3. The president may also appoint after consultation with the election commission such regional commissioners as he
may consider necessary to assist the election commission
4. The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be
determined by the president
5. When any election commissioner is appointed, the chief election commissioner acts as the Chairman of the Election
Commission
6. The chief election commissioner and the two election commissioners draw salaries and allowances at par with those of
the Judges of the Supreme Court of India
7. The chief election commissioner or an election commissioner holds office for a term of 6 years from the date on which
he assumes his office or till he attains the age of 65 years, whichever is earlier
8. Election commissioner or a regional commissioner shall not be removed from office except on the recommendation
of the chief election commissioner
The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991, as amended,
provides that in case of difference of opinion on any matter, such matter shall be decided by the opinion of the majority.
Thus the CEC cannot over-ride any decision of the commission by himself. As Chairman of the Election Commission he
presides over the meetings, conducts the business of the day and ensures smooth transaction of business of the commission.
1. The commission has the power to disqualify a candidate who has not lodged an account of his election expenses
within the time and in the manner prescribed by law. The commission also has the power to remove/reduce the period
such disqualifications ad any other disqualification under the law
2. It has quasi-judicial jurisdiction in the case of settlement of disputes between the splinter groups of a recognised party
The party system is an essential feature of parliamentary democracy. However, there is no direct reference of political
parties in the Constitution of India. The statutory law relating to registration of political parties was enacted in 1989 which
was quite liberal. As a result, a large number of non-serious parties mushroomed and got registered with the Commission.
Many of them did not contest elections at all after their registration. It led to confusion among electors as to whom to vote.
To eliminate the mushrooming of parties, the EC had to take some rigorous steps:
• The Commission now registers a party which has at least 100 registered electors as its members and is also
charging a nominal processing fee of Rs 10,000 to cover the administration expenses which it will have to incur
on correspondence with the parties after their registration.
• In order to ensure that the registered political parties practice democracy in their internal functioning, the
Commission requires them to hold their organizational elections regularly in accordance with their constitutions.
The measures taken by the EC to streamline the registration of political parties have shown effective results.
i. EVMs:
EC has been trying to bring improvements in election procedures by taking advantage of scientific and technological
advancements. The introduction of ‘electronic voting machines’ (EVMs) is one of the steps in that direction by
reducing malpractices and also improving the efficiency of the voting process. On an experimental basis, the EVMs
were first tried in the State of Kerala during the 1982 Legislative Assembly Elections. In June 1999 Assembly
elections, Goa became the first State to successfully use EVMs in all its Assembly constituencies. In the 2004 Lok
Sabha elections, the machines were used all over the country.
It is a major initiative taken by the EC to make the electoral process simple, quick and trouble-free. It has saved
money, solved several logistical issues and also contributed to the conservation of environment through saving of
paper. Another major advantage of these machines is that the counting of votes becomes more fast and accurate.
ii. IT:
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EC has not lagged behind in making use of Information Technology for efficient electoral management and
administration. It launched a website of its own in 1998. This is now a good source to have accurate information about
elections, election laws, manuals and handbooks published by the Commission.
iv EPICs:
In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the Election Commission in
August 1993 ordered the issuance of electors’ photo identity cards (EPICs) for all voters. During the 2004 Assembly
elections, it was mandatory for people possessing EPICs to furnish it at the time of voting. The distribution of EPICs,
on the part of Election Commission, was a major step to reduce electoral malpractices. Only genuine voters were listed
in the rolls with the issuance of voter identity cards.
for prejudicially affecting the prospect of election of any candidate be made an electoral offence with punishment of a
minimum of two years imprisonment.
Summing Up
Over the years, EC has conducted a number of laudable electoral reforms to strengthen democracy and enhance the fairness
of elections. These reforms are quite adequate and admirable. Undoubtedly, the election machinery, under the aegis of the
EC, deserves credit for conducting elections in a free and fair manner.
However, our system is still plagued by many vices. To win votes, political parties resort to foul methods and corrupt
practices. Such maladies encourage the anti-social elements to enter the electoral fray. The problem is not lack of laws, but
lack of their strict implementation. In order to stamp out these unfair tendencies, there is a need to strengthen the hands of
the EC and to give it more legal and institutional powers. The EC must be entrusted with powers to punish the errant
politicians who transgress and violate the electoral laws.
CAG helps the parliament/state legislatures hold their respective governments accountable. He is one of the bulwarks of
the democratic system of government in India; the others being the SC, the ECI and the UPSC. It is for these reasons Dr. B
R Ambedkar said that the CAG shall be the most important Officer under the Constitution of India and his duties are far
more important than the duties of even the judiciary.
Why Comptroller?
In the 15th century, the word Controller developed the alternate spelling Comptroller as a result of an association between
the first part of the word, cont, and an unrelated word count and its variant, compt. Many people pronounce comptroller
like controller but both are acceptable. But the word Comptroller has a different meaning-someone who maintains and
audits business. Comptrollers are controllers but controllers are not comptrollers.
The reports of the Comptroller and Auditor-General of India relating to the accounts of a State shall be submitted to the
Governor of the State, who shall cause them to be laid before the Legislature of the State.
4. His salary and other service conditions though determined by the Parliament cannot be varied to his disadvantage
after appointment
5. His administrative powers and the conditions of service of persons serving in the Indian Audit and Accounts
Department shall be prescribed by the President only after consulting him.
6. The administrative expenses of the office of CAG, including all salaries, allowances and pensions of persons serving in
that office are charged upon the Consolidated Fund of India and are not subject to the vote of Parliament.
2.4.2 Duties
• He audits the accounts related to all expenditure from the Consolidated Fund of India, Consolidated Fund of
each state and UT having a legislative assembly
• He audits all expenditure from the Contingency Fund of India and the Public Account of India as well as the
Contingency Fund and Public Account of each state
• He audits all trading, manufacturing, profit and loss accounts, balance sheets and other subsidiary accounts kept
by any department of the Central Government and the state governments.
• He audits the receipts and expenditure of all bodies and authorities substantially financed from the Central or State
revenues; government companies; other corporations and bodies, when so required by related laws
2.4.3 Functions
• He audits all transactions of the Central and state governments related to debt, sinking funds, deposits,
advances, suspense accounts and remittance business
• He audits the accounts of any other authority when requested by the President or Governor e.g. Local bodies
• He advises the President with regard to prescription of the form in which the accounts of the Centre and states
shall be kept
• He submits his audit reports relating to the accounts of the Centre to the President, who shall, in turn, place them
before both the houses of Parliament
• He submits his audit reports relating to the accounts of a State to the Governor, who shall, in turn, place them
before the state legislature
• He ascertains and certifies the net proceeds of any tax or duty and his certificate is final on the matter
• He acts as a guide, friend and philosopher of the Public Accounts Committee of the Parliament
• He compiles and maintains the accounts of state governments. In 1976, he was relieved of his responsibilities with
regard to the compilation and maintenance of accounts of the Central government due to separation of accounts
from audit
• He submits 3 audit reports to the President- audit report on appropriation accounts, audit report on finance
accounts and audit report on public undertakings
In light of the above limitations and changes in the Indian polity such as increasing role of civil society and NGOs,
liberalisation of the economy, PPP mode of investments the DPC Act, 1971 must be reviewed to bring in greater
accountability and transparency in every sphere that touches public life. CAG’s work should go beyond the question of
whether government funds are being spent appropriately to ask whether programs and policies are meeting their objectives
and the needs of society
i. Regulatory Audit: It is an audit to ascertain whether the moneys spent were authorised for the purpose for which they
were spent and also that the expenditure incurred was in conformity with the laws, rules and regulations
ii. Supplementary Audit: CAG takes up supplementary audits in PSUs, even after the commercial audits are done by the
auditors appointed by the CAG, for detection of leakages.
iii. Propriety Audit: It focuses on whether the expenditure made is in public interest or not i.e. it moves beyond mere
scrutiny of expenditure to question its wisdom and economy in order to identify cases of improper expenditure and waste
of public money
iv. Efficiency Audit: Efficiency audit as the name suggests answers the question whether the money invested yields
optimum results. The main purpose of the efficiency audit is to ensure that the investment is prioritized and channelled into
its most profitable utilization
v. Performance Audit: Performance audit answers whether the government programmes such as NREGA have achieved
the desired objectives at the lowest cost and given the intended benefits. It generally does not get into the merits-demerits
of a particular policy/scheme rather looks into the effectiveness with which the scheme is implemented and any
deficiencies thereof
vi. Environmental Audit: This is a relatively new area of concern for the CAG keeping in mind the challenges facing
India with respect to conservation and management of the environment. More than 100 audits on environmental issues like
bio-diversity, pollution of rivers, waste management have been conducted by the CAG to identify critical issues and
suggest possible solutions by involving all stakeholders
i. Mode of Appointment
• The present selection process for the CAG is entirely internal to the Government machinery; no one outside
has any knowledge of what criteria are applied, how names are shortlisted and how a final selection is made.
Thus presently there is a lack of clarity on the criterion, the definition of field of choice, the procedures for
the selection of this high constitutional functionary. In most of the other countries there is no scope for the
head of the Supreme Audit Institution to be chosen at the discretion of the Government. It is desirable that
India adopts the international practice of appointing head of Supreme Audit Institution to be independent of
the discriminatory power of the Executive.
• Another related issue is that of the appointment of IAS officers as the CAG. In the last 48 years since 1966
only one IAAS officer has been chosen while all other postings went to senior civil servants. From the
viewpoint of IAAS this looks like the systematic exclusion of that service and the virtual absorption of the
post of CAG in the IAS cadre. This perception has had a demoralising effect on the IAAS cadre. Whether
that feeling is right or wrong, it exists; and it is bound to have some effect on the commitment, zeal and
courage with which the audit function is performed. The answer to it is not to exclude the IAS, nor to reserve
the post exclusively for the IAAS, but to ensure that the appointment processes are such as to leave no room
at all for a sense of unfairness or suspicions of impropriety; and that the selected person, from wherever he or
she be drawn, is of such unquestionable suitability as to command respect both within and outside the audit
department. The field of choice should certainly be wide, and should include the IAAS, other central accounts
services (civil accounts, railway accounts and defence accounts), the IAS, and a limited number of accounts,
finance and management experts from outside the government.
• ICAI (Institute of Chartered Accountants in India) Code of Ethics states that an auditor’s independence has
two aspects- independence in fact and independence in appearance. The appointment of former secretaries as
CAG may compromise the independence of this institution because of apparent/perceived conflict of
interest.
Recent Example:
There are 2 PILs have been filed in the SC against the appointment of former defence secretary Shashi Kant
Sharma as the new CAG. Before being appointed the CAG, Mr. Sharma had served in key positions in the defence
ministry that involved decision making powers over purchases including the Augusta Westland Chopper deal and the
Tatra trucks deal. His appointment is thus being questioned in the context of conflict of interest and also that it goes
against the code of ethics of auditors.
• In the recent past CAG’s reports on 2G, Coal blocks allocation, Delhi Airport PPP have made the Government
very uncomfortable with the audit findings. In order to defend its position, some members of the ruling party
have raised questions about CAG’s jurisdiction and observed that he has exceeded his mandate. What is the
veracity of such criticism? The CAG’s role should be viewed in the context of our constitutional scheme u-
nder which the executive is accountable to Parliament. CAG is an essential instrument for enforcing the
accountability mechanism as the CAG’s reports on government’s stewardship of public finance are required
to be placed in Parliament and state legislatures under Article 151 of the Constitution. To enable him to
discharge this responsibility, without fear or favour, he has been given an independent status under Article
148 analogous to that of a Supreme Court judge.
• The word ‘audit’ has not been defined in either the Constitution or in the CAG Act, 1971. We have so far
been going by 150 years of history, tradition, existing provisions and international practice. The CAG has not
formulated his own policy in the above reports and has only gone by policy prescriptions recommended
internally at various levels within the government. It is within the mandate of CAG to comment on a policy in
cases wherein-
• The financial implications of a policy were not gone into at all before the decision was made
• The assessment of financial implications was quite clearly wrong
• The numbers were correct but the reasoning behind the decision was questionable
Further, the CAG is bound by the oath of office to uphold the Constitution of India and thus is bound to comment
on policy matters that seem unconstitutional. If the government were to formulate a scheme or policy that
selectively confers benefits from public funds on an individual or a group to the exclusion of others, it is the CAG’s
duty to point this out. Thus the CAG was well within his mandate to comment on the above policy decisions.
Another criticism has been of the Notional and Presumptive loss figures as claimed in the reports. There is a genuine
dilemma here. If the reports were to make a bland statement that an alternative procedure would have yielded more
revenue to the government or would have meant less discretionary patronage, it would give no indication of the
financial dimensions of the decision or the importance of the matter. Putting a number on it brings this home. On the
other hand, when a number is mentioned, the discussion tends to focus on it and not on the issues involved. There is no
easy way out of this dilemma. All that one can say is that the ‘notional’ number should e carefully estimated, making
the assumptions and methodology clear. This is what the CAG has done. He has not claimed that his figures are
definitive. The assumptions can be questioned, the methodology can be questioned, the resulting number can be
debated; what cannot be questioned is the procedural or substantive lapse to which the figure points.
The Constituent Assembly, after independence, saw the need for giving a secure and autonomous status to Public Service
Commissions both at Federal and Provincial levels for ensuring unbiased recruitment to Civil Services as also for
protection of service interests.
With the promulgation of the new Constitution for independent India on 26th January, 1950, the Federal Public Service
Commission was accorded a constitutional status as an autonomous entity and given the title – Union Public Service
Commission (UPSC).
3.2 Composition
UPSC has been established under Article 315 of the Constitution of India. The Commission consists of a Chairman and ten
Members appointed by the President of India. The Constitution, without specifying the strength of the commission has left
the matter to the discretion of the President.
Further, no qualifications are prescribed for the Commission’s membership except that one-half of the members should be
such persons who have held office for at least 10 years either under the Government of India or under the
government of a state.
The Constitution has authorized the President to determine the conditions of service of the Chairman and other Members of
the Commission. Accordingly, the terms and conditions of service of Chairman and Members of the Commission are
governed by the Union Public Service Commission (Members) Regulations, 1969.
The Commission is serviced by a Secretariat headed by a Secretary. The expenses of the Union or a State Public Service
Commission, including any salaries, allowances and pensions payable to or in respect of the members or staff of the
Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the Consolidated Fund of the
State.
The Chairman and Members of the Commission hold office for a term of 6 years or until they attain the age of 65 years,
whichever is earlier. However, they can relinquish their offices at any time by addressing their resignations to the
President. The President can appoint one of the members of the UPSC as an acting chairman in the following
circumstances when the office of the chairman falls vacant or when the chairman is unable to perform his functions due to
absence or some other reason
3.9 Exemptions:
In order to exempt some posts which for reasons of National Security or some other reasons may not be required to be
referred to the Commission for their advice, the Union Public Service Commission (Exemption from Consultations)
Regulations were issued on September 1, 1958, under Article 320(3)(a) and (b) of the Constitution. These Regulations are
amended or revised as and when the need arises. The following matters are kept outside the purview of UPSC:
a) While making reservations of appointments or posts in favour of any backward class of citizens
b) While taking into consideration the claims of scheduled castes and scheduled tribes in making appointments to
services and posts
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c) With regard to the selections for chairmanship or membership of commissions or tribunals, posts of the highest
diplomatic nature and a bulk of group C and group D services
d) With regard to the selection for temporary appointments for not more than a year
The President can exclude posts, services and matters from the purview of the UPSC. The President can also, in respect to
the all-India services and Central services and posts may make regulations specifying the matters in which it shall not be
necessary for UPSC to be consulted. All such regulations shall be laid before the Parliament which can amend or repeal
them.
• 1990: 65th Constitutional Amendment provides for the establishment of a high-level multi-member National
Commission for SCs and STs in place of the single Special Officer for SCs and STs.
• 2003: 89th Constitutional Amendment bifurcated the combined National Commission for SCs and STs into 2
separate bodies, namely the National Commission for SCs (under Article 338) and the National Commission for
STs (under Article 338A)
• Art. 350:- Right to conserve distinct Language, Script or Culture & instruction in Mother Tongue.
• Art. 23:- Prohibition of traffic in human beings and beggar and other similar form of forced labour;
• Art. 24:- Forbidding Child Labour.
The Constitution does not specify the qualifications, tenure, salaries and allowances, service conditions and procedure for
removal of the Special Officer for linguistic minorities. In pursuance of the provision of Article 350-B, the office of the
Special Officer for Linguistic Minorities was created in 1957. He is designated as the Commissioner for Linguistic
Minorities.
The Commissioner has his headquarters at Allahabad and there are three regional offices at Belgaum, Chennai and
Kolkata which are each headed by an Assistant Commissioner. At the centre, the commissioner falls under the Ministry of
Minority Affairs. Hence he submits the annual reports or other reports to the President through the Union Minority Affairs
Minister.
6.2.1 The president has assigned the following duties to the AG:
1. To appear on behalf of the GoI in all cases in the Supreme Court in which the GoI is concerned
2. To represent the GoI in any reference made by the president to the Supreme Court under Article 143 of the
Constitution
3. To appear in any high court in any case in which the GoI is concerned
6.4 Limitations
The AG does not have any executive authority as these functions are performed by the Law Minister of India; further,
following limitations are placed on the AG in order to avoid any complication and conflict of duty:
1. He should not advise or hold a brief against the Government of India
2. He should not advise or hold a brief in cases in which he is called upon to advise or appear for the GoI
3. He should not defend accused persons in criminal prosecutions without the permission of the GoI
4. He should not accept appointment as a director in any company or corporation without the permission of GoI
8. Finance Commission
The Finance Commission is constituted by the President as a quasi-judicial body under article 280 of the Constitution,
mainly to give its recommendations on distribution of tax revenues between the Union and the States and amongst the
States themselves. Two distinctive features of the Commission’s work involve redressing the vertical imbalances between
the taxation powers and expenditure responsibilities of the centre and the States respectively and equalization of all public
services across the States.
8.1 Composition
• The Finance Commission is constituted by the President every fifth year or at such earlier time as he considers
necessary. It consists of a chairman and four other members. They hold office for such period as specified by the
president in his order and are eligible for reappointment.
• The Constitution authorises the Parliament to determine the qualifications of members of the commission and the
manner in which they should be selected. Accordingly, the Parliament has specified the qualifications of the
chairman and other members of the commission. The Chairman should be a person having experience in public
affairs; and the four other members should be selected from amongst the following:
1. A judge of high court or one qualified to be appointed as one
2. A person who has specialised knowledge of finance and accounts of the government
3. A person who has wide experience in financial matters and in administration
4. A person who has special knowledge of economics.
8.2 Functions
It is the duty of the Commission to make recommendations to the President as to:
• The distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided
between them and the allocation between the States of the respective shares of such proceeds;
• The principles which should govern the grants-in-aid of the revenues of the States out of the Consolidated Fund of
India;
• The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in
the State on the basis of the recommendations made by the Finance Commission of the State;
• The measures needed to augment the Consolidated Fund of a State to supplement the resources of the
Municipalities in the State on the basis of the recommendations made by the Finance Commission of the State;
• Any other matter referred to the Commission by the President in the interests of sound finance.
• The Commission determines its procedure and has such powers in the performance of its functions as Parliament may
by law confer on them.
8.3 Recommendations of FC
The recommendations are presented to the President in the FC report and the President causes the same to be tabled in the
Parliament. They are not binding on the Government but are conventionally accepted by the Government.
b. Losses in the power sector: Subsidy for the power sector is the largest component of state government subsidies. The
power sector in most states is beset with high losses, and inefficient infrastructure, resulting in huge losses.
Recommendation: Losses in the power sector are expected to be a major drag on the finances of State Governments,
and therefore, the problems confronting this sector need to be addressed in a time-bound manner
c. Reduction of centrally sponsored schemes: Initiatives should be taken to reduce the number of Centrally Sponsored
Schemes and to restore the predominance of fund-transfers based on Planning Commission recommendations
• The Empowered Committee of State Finance Ministers (EC) should be given statutory status. The compensation
should be disbursed in quarterly instalments on the basis of recommendations by a three-member Compensation
Committee. The Compensation Committee should comprise of the Secretary, Department of Revenue of the central
government, Secretary to the EC, and an eminent person with experience in public finance
State-specific grants recommended for a state should be released upon compliance. Borrowing limits for states to
be worked out by Finance Ministry using the fiscal reform path, thus acting as an enforcement mechanism for
fiscal correction by states.
• The Finance Commission assesses the non-plan requirements of the State Governments and recommends a share
in the net yield from the Central and Grants-in-aid (presently 32.5%). The divisible sum of Central taxes is
distributed inter se among the states based on independent criteria. In addition, the Finance Commission
recommends the principles governing non-plan grants and loans to states. Examples of grants would include funds
for disaster relief, maintenance of roads and other state-specific requests.
• Among states, the distribution of tax revenue and grants is determined through a formula accounting for
population (25%), area (10%), fiscal capacity (47.5%) and fiscal discipline (17.5%). Unlike the Planning
Commission, the Finance Commission does not distinguish between special and non-special category states in its
allocation.
• The most significant centre-state transfer is the distribution of central tax revenues among states. The Finance
Commission decides the actual distribution and the current Finance Commission have set aside 32.5% of central
tax revenue for states. In 2011-12, this amounted to Rs 2.5 lakh crore (57% of total transfers), making it the
largest transfer from the centre to states.
• The Planning Commission allocates funds to states through central assistance for state plans. Central assistance
can be broadly split into three components: Normal Central Assistance (NCA), Additional Central Assistance
(ACA) and Special Central Assistance.
• NCA, the main assistance for state plans, is split to favour special category states: the 11 states get 30% of the
total assistance while the other states share the remaining 70%. The nature of the assistance also varies for special
category states; NCA is split into 90% grants and 10% loans for special category states, while the ratio between
grants and loans is 30:70 for other states.
• The Planning Commission also allocates funds for ACA (assistance for externally aided projects and other
specific project) and funds for Centrally Sponsored Schemes (CSS). State-wise allocation of both ACA and CSS
funds are prescribed by the centre.
• For allocation among special category states, there are no explicit criteria for distribution and funds are allocated
on the basis of the state’s plan size and previous plan expenditures. Allocation between non special category states
is determined by the Gadgil Mukherjee formula which gives weight to population (60%), per capita income
(25%), fiscal performance (7.5%) and special problems (7.5%).
• As a proportion of total centre-state transfers NCA typically accounts for a relatively small portion (around 5% of
total transfers in 2011-12). However, Planning Commission allocations can be important for states, especially for
the functioning of certain schemes.
a. Role of SFC : One major contribution is the template prepared by 13th FC with the help of an expert committee to
help future SFCs in preparing their reports. Although no SFC with a mind of its own will mechanically follow the
template, this is a big step towards streamlining SFC reports in the future.
b. Amend Article 280: The 13th FC has recommended to amend Article 280(3)(bb) and (c) of the Constitution so that the
words “on the basis of the recommendations of the finance commission of the State” are changed to “after taking into
consideration the recommendations of the finance commission of the State”. This recommendation, already approved
by several expert bodies fully appreciates the spirit of the clause that envisages an organic link in Indian fiscal
federalism.
c. Parallel Agencies and bodies: The 13th FC rightly points out that parallel agencies and bodies are “emasculating
local governments both financially and operationally”. Having constitutionally assigned a certain functional domain to
local governments, which include “planning for economic development and social justice” and preparing a draft
district development plan, it is for the union and state governments to help this process of decentralised planning and
governance with funds, functionaries and technical support.
• Article 280 (3) (bb) & (c) of the Constitution should be amended to make the recommendations of the State Finance
Commissions less binding on state governments.
• Article 243(I) of the Constitution should be amended to empower states governments to constitute and direct state
Finance Commissions to give their report before the National Finance Commission finalises its report.
• State governments should strengthen their local audit departments through capacity building.
• Bodies similar to the SFC should be set up in states which are not covered by Part IX of the Constitution (Panchayats).
• Local Bodies should be associated with city planning functions wherever other development authorities are mandated
for this function.
• State governments will be eligible for the general performance grant and the special areas performance grant only if
they comply with the prescribed stipulations.
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Pressure groups can therefore act as a channel of communication between the people and
government.
• They seek to exert influence from outside, rather than to win or exercise government
power.
• Pressure groups do not make policy decisions, but rather try to influence those who do
(the policy-makers). In that sense, they are ‘external’ to government.
• They typically have a narrow issue focus. In some cases, they may focus on a single
issue (for instance opposing a planned road development).
• Their members are united by either a shared belief in a particular cause or a common
set of interests. People with different ideological and party preferences may thus work
happily together as members of the same pressure group.
• Based on certain issues: Each pressure group organises itself keeping in view certain
interests and thus tries to adopt the structure of power in the political systems. In every
government and political party there are clashing interest groups. These groups try to
dominate the political structure and to see that groups whose interests clash with
theirs are suppressed. Thus, each political party and system is pressurised by certain
interest groups which may be similar or reactionary to each other.
• Use of modern as well as traditional means: They try to follow modern means of
exerting pressure, without fully giving up the traditional or old ways of operation. They
adopt techniques like financing of political parties, sponsoring their close candidates at
the time of elections and keeping the bureaucracy also satisfied. Their traditional
means include exploitation of caste, creed and religious feelings to promote their
interests.
Conventionally, political parties are the bodies which are regarded as providing the way through
which people’s interests are represented in the political system. They also function as a means
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of political communication, since individuals can express their own views to politicians by
becoming members of political parties and can represent their party’s viewpoint to others in
the community.
On the other hand, pressure groups can be seen as providing an additional form of
representation within the political system and an additional channel of political communication.
Some of the differences between Political parties and the pressure groups have been
mentioned below:
There are several reasons why political parties are often confused with the pressure groups.
Firstly, many small political parties resemble pressure groups in that they have a narrow issue
focus. For example, the British National Party (BNP) is primarily concerned with issues of race
and immigration. The Green Party, despite developing wide-ranging manifestos, places greatest
emphasis on environmental issues such as pollution, economic sustainability and climate
change. Secondly, some pressure groups use elections as a tactical weapon. Any group that
puts candidates up for election is technically a party, not a pressure group. But some pressure
groups use elections as a means of gaining publicity and attracting media attention, with little
or no expectation of winning the election, still less of winning government power.
The relationship between the pressure groups and political parties is also an interesting one.
A pressure group with a close relationship to a political party may work to its advantage. But
this can be harmful at times especially when the opposing party comes to power, the pressure
group’s influence is bound to decrease on policy. National Students Union of India (NSUI)
provides future leadership to the Congress while the Akhil Bharatiya Vidyarthi Parishad (ABVP)
does so for the Bharatiya Janata Party. While some pressure groups are linked to particular
political parties, there are many which have no linkage to any political party.
The interest/cause classification is based on the purpose of the group in question. It therefore
reflects the nature of the group’s goals, the kinds of people who belong to it, and their
motivation for joining. Interest groups (sometimes called ‘sectional’, ‘protective’ or ‘functional’
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groups) are groups that represent a particular section of society: workers, employers,
consumers, an ethnic or religious group, and so on. Interest groups have the following features:
Trade unions, business corporations, trade associations and professional bodies are the prime
examples of this type of group. They are called ‘sectional’ groups because they represent a
particular section of the population. Some of the examples of interest groups are FICCI, CII,
AITUC etc.
Cause groups (sometimes called ‘promotional’, ‘attitude’ or ‘issue’ groups) are groups that are
based on shared attitudes or values, rather than the common interests of its members. The
causes they seek to advance are many and various. They range from charity activities, poverty
reduction, education and the environment, to human rights, transparency in governance etc.
Mazdoor Kisan Shakti Sangathan can be cited as a prime example of a cause group as it seeks to
promote transparency in governance by creating pressure for the introduction of right to
information to citizens. Other examples could be PETA, India against Corruption.
Outsider groups on the other hands are the ones that are not so closely involved with the
decision makers and who find it harder to get their voices heard in the higher echelons of policy
making. They are kept, or choose to remain, at arm’s length from government. They therefore
try to exert influence indirectly via the mass media or through public opinion campaigns. One of
the examples of an outsider group is the association for democratic reforms or ADR which has
been pushing for reforms in the way representatives are elected by the citizens of India.
But at times many groups employ both insider and outsider tactics. This certainly applies in the
case of high-profile insider groups, which recognize that the ability to mount public-opinion and
media campaigns strengthens their hands when it comes to bargaining with government.
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Representation
Political participation
Education
Policy formulation
Policy implementation
Representation
Pressure groups provide a mouthpiece for groups and interests that are not adequately
represented through the electoral process or by political parties. This occurs, in part, because
groups are concerned with the specific rather than the general. Whereas parties attempt to
broaden their appeal, trying to catch (potentially) all voters, pressure groups can articulate the
views or interests of particular groups and focus on specific causes. Some have even argued
that pressure groups provide an alternative to the formal representative process through what
has been called functional representation.
However, questions have also been raised about the capacity of groups to carry out
representation:
• Groups have a low level of internal democracy, creating the possibility that they
express the views of their leaders and not their members.
• The influence of groups on government does not always reflect their membership size
or their popular support.
Political Participation
Education
Much of what the public knows about politics it finds out through pressure groups of one kind
or another. Many pressure groups, indeed, operate largely through their ability to communicate
with the public and raise political consciousness. Groups therefore often devote significant
resources to carrying out research, maintaining websites, commenting on government policy
and using high-profile academics, scientists and even celebrities to get their views across. An
emphasis is therefore placed on cultivating expert authority.
Policy Formulation
Although pressure groups, by definition, are not policy-makers, this does not prevent many
pressure groups from participating in the policy-making process. In particular, pressure groups
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are a vital source of information and advice to governments. Many groups are therefore
regularly consulted in the process of policy formulation, with government policy increasingly
being developed through policy networks. An example of such group is Observor Research
Foundation, which works on policy issues primarily related to Foreign affairs.
Policy Implementation
The role of some pressure groups extends beyond trying to shape the content of public policy
to playing a role in putting policy into practice. Not only do such links further blur the
distinction between groups and government, but they also give the groups in question clear
leverage when it comes to influencing the content of policy. However, questions have also been
raised about the role of groups in implementing policy: Some have criticized such groups for
being over-close to government, and therefore for endangering their independence. Others
have argued that policy implementation gives groups unfair political leverage in influencing
policy decisions.
Ministers and civil servants work at the heart of the ‘core executive’, the network of bodies
headed by the Prime Minister and Cabinet, which develop and make government policy. This is
where power lies. Many groups therefore aspire to get in touch with senior civil servants and
ministers to get some sort of influence over the policies while they are being implemented.
Although such influence may involve formal and informal meetings with ministers, routine
behind-the scenes meetings with civil servants and membership of policy committees may be
the most important way of exerting influence.
Parliament
Groups that cannot gain access to the executive may look to exert influence through
Parliament. In other cases, groups may use parliamentary lobbying to supplement contacts with
ministers and civil servants. Although less can be achieved by influencing Parliament than by
influencing the executive, changes can nevertheless be made to the details of legislation or the
profile of a political issue. This can happen through influence on, for instance, private members’
bills, parliamentary questions (written and oral) and select committee enquiries.
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Political Parties
The most obvious way in which groups influence parties is through funding and donations.
Public Opinion
These strategies are adopted by outsider groups, although high-profile insider groups may also
engage in public-opinion campaigning. The purpose of such strategies is to influence
government indirectly by pushing issues up the political agenda and demonstrating both the
strength of commitment and the level of public support for a particular cause. The hope is that
government will pay attention for fear of suffering electoral consequences. Association for
Democratic Reforms has helped in shaping public opinion to some extent by putting up details
of political representatives of various political parties from each constituency on
www.myneta.info.
Direct Action
Direct action as a political strategy overlaps with some forms of public-opinion campaigning.
However, whereas most political protests take place within the constitutional and legal
framework, being based on established rights of freedom of speech, assembly and movement,
direct action aims to cause disruption or inconvenience. Strikes, blockades, boycotts and sit-ins
are all examples of direct action. Direct action may be violent or non-violent. A non-violent
example of direct action is the protests organized at Ramleela Maidan by India against
Corruption. People’s Movement Against Nuclear Energy protested against the setting up of
Koodankulam nuclear power plant.
Many countries see lobbying as an integral part of democratic functioning that allows
individuals and groups to legitimately influence decisions that affect them. No country in the
world, including India, has banned lobbying. In fact, a few countries even regulate the activity,
prominent among these are USA, Canada, Australia, Germany and Taiwan. These countries treat
lobbying as a legitimate right of citizens. Regulations serve as a tool to enhance transparency in
the policymaking process rather than restricting access to policymakers. In fact, that is one of
the key reasons why the UK regulates the lobbied rather than lobbying. The effectiveness of the
law largely depends on how it defines lobbying and lobbyists. In USA lobbying is regulated
under the Lobbying Disclosure Act, 1995. This Act requires lobbyists to register and report
lobbying fees above a certain amount. It also requires companies to report all the lobbying
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expenditure along with the list of issues, lobbyists involved and the public officials and offices
contacted.
Lobbying in India
In India, where there is no law regulating the process, lobbying had traditionally been a tool for
industry bodies and other pressure groups to engage with the government ahead of the
national budget. For decades, organisations such as the Federation of Indian Chambers of
Commerce and Industry and the Confederation of Indian Industry, among others, have worked
hard on behalf of their members to influence key ministries and policies. In recent years, the
need for continuous engagement has increased and so has the sophistication.
Lobbying is arguably one of the most controversial activities in modern democracies. Lobbyists
provide governments with valuable policy-related information and expertise but if the activity
is not transparent, public interest may be put at risk in favour of specific interests. It is easy to
equate lobbying, which is an attempt to influence policy through legal and ethical means, with
corruption in India because a large chunk of the population believes that almost every dealing
with the government requires bribes to be paid to officials. Lobbying is a dirty word in India,
one reason being that lobbying activities were repeatedly identified in the context of
corruption cases. For example, in 2010 , leaked audio transcripts of conversations of an
influential Indian lobbyist, Nira Radia, revealed suspicious dealings between the government
and several business groups , reinforcing public perceptions about lobbying.
In reality, lobbying is not corruption; at least not the western model that is increasingly gaining
traction in India, as an open economy pulls in new rules of engagement from developed
economies. Given that most foreign companies have to follow strict anti-corruption laws in
their own countries, few are keen to come under the lens of their regulators, lose face and pay
fines. The Indian government itself spends millions of dollars every year to influence the U.S.
government and other interest groups there. Ranbaxy paid $90,000 to Patton Boggs to
preserve access to affordable generics. Wipro, like many Indian software firms, lobbied in the
U.S for favourable visa policies. Not only private companies but even Indian government has
been paying a fee every year since 2005 to a US firm to lobby for the Indo-US civilian nuclear
deal. As reported by the Daily Mail in November 2012, Washington-based Barbour Griffith &
Rogers (BGR), hired by the Indian embassy, also used to seek media interviews for Prime
Minister Manmohan Singh and get Congressional resolutions passed in his support ahead of
a US visit.
While lobbying is not a new phenomenon in India, it is largely unregulated. There are no laws
that defined the scope of lobbying, who could undertake it, or the extent of disclosure
necessary. Companies are not mandated to disclose their activities and lobbyists are neither
authorized nor encouraged to reveal the names of clients or public officials they have
contacted. The distinction between lobbying and bribery still remains unclear.
A private member’s Bill to regulate lobbying was recently introduced in the Lok Sabha by
Kalikesh Narayan Singh Deo, which defined the term as “an act of communication with and
payment to a public servant with the aim of influencing” legislation or securing a government
contract. The Bill required lobbyists to register with an authority and declare certain
information. It is not lobbying that is the problem, but the lack of transparency, lack of
comprehensive regulations and lack of mechanisms to monitor the activities of the powerful
that is at the root of the problem. Right to Information Act (RTI) is a good step in this direction.
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In 2012, as part of a routine disclosure under U.S. law, Wal-Mart revealed it had spent $25
million since 2008 on lobbying to "enhance market access for investment in India." This
disclosure, which came weeks after the Indian government made a controversial decision to
permit FDI in the country's multi-brand retail sector, created uproar in India. Groups
protesting against FDI in multi-brand retail used Walmart’s disclosure to advocate their case.
The US retailer's lobbying had drawn sharp criticism from the opposition parties, forcing
the Indian government to order an inquiry by a former chief justice of the Punjab and
Haryana high Court Mukul Mudgal but the report of the panel remained inconclusive due to
alleged non-cooperation by Wal-Mart.
But until comprehensive levels of transparency are achieved, legalizing lobbying would mean no
good. Also, regulations need to evolve and documented in an iterative manner before
embarking upon such a move. India needs to determine a regulatory model that suits its socio-
political needs. Furthermore, it should tread a fine line while drafting the disclosure
requirements. Too high disclosure requirements could drive lobbyists underground while too
low penalties may not act as sufficient deterrent for law-breakers.
Proponents of lobbying feel that it is inherent in any democracy, how else should one try and
convince a policy maker of a particular position. Industry chambers such as FICCI and
ASSOCHAM feel that business groups should be entitled to voice their concerns related to a
particular policy matter with the government if they feel their interests may be jeopardised.
They advocate that making lobbying and advocacy legal would lead to a clean way of
approaching the policymakers and lawmakers if they have any legitimate and genuine interests.
Critics argue that corporates or people with mighty socioeconomic power, by themselves or
through their industry bodies, corrupt the laws to serve a self-serving agenda by bending or
deflecting them away from general fairness to majority of the population. It would also be
against the right to equality guaranteed to citizens of the country, as businessmen with
extensive money power can indulge in lobbying and get things done. While common man has
to wait for hours or days to meet his MP/MLA. Thus, those with (financial) resources will win
and those without cash will lose.
When non-profit organizations advocate on their own behalf, they seek to positively affect
majority of the society, whereas lobbying refers specifically to advocacy efforts that attempt
to influence policy or legislation of a country by interested groups, irrespective of its best
outcome to the society.
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Those who argue that pressure groups have become more powerful usually draw attention to
one of three developments:
1. The growth of cause groups. Looked at simply in terms of political participation, groups
certainly appear to be becoming more important. This is best demonstrated by the
growth of cause groups in particular. Some of the reasons cited for increase in the
number of pressure groups are:
i. Increased leisure time, both in terms of the shorter working week and more early
retirement, has increased the number of people with time to devote to such
activities
ii. Higher educational standards have increased the numbers of people with the
organisational skills to contribute to pressure groups.
iii. Changes in gender roles have removed many of the barriers to participation by
women in pressure group activity
iv. Membership of political parties has declined. It has been argued that this reflects
the failure of the political parties adequately to reflect the needs of different groups
of people in society, and that cause groups offer a more promising route for bringing
about political change.
2. The widening of access points through devolution
3. Globalization. Globalization has strengthened pressure groups in a number of ways. In
particular, there is general agreement that business groups have become more
powerful in a global age. This is because they are able more easily to relocate
production and investment, so exerting greater leverage on national governments. Such
trends have strengthened pressures on governments to, for instance, cut business taxes
and reduce corporate regulation. Another feature of globalization has been the
emergence of NGOs, such as the World Development Movement and the World Social
Forum, as major actors on the global stage. Some 2,400 NGOs, for example, took part in
the Earth Summit in Rio de Janeiro in 1992.
However, not everyone believes that pressure groups have become more important. Some even
talk in terms of the decline in pressure-group power in recent years. Such arguments are usually
based on one of two developments:
1. The end of corporatism. For some, the high point of pressure-group influence came in
the 1970s (Especially in the case of developed countries). This was a period of so-called
tripartite government or corporatism. Economic policy was therefore developed
through a process of routine consultation and group bargaining. However, corporatism
was dismantled in the 1980s and it has never been re-established.
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'Corporatism' refers to the close relationship between the government and economic
interest groups (trade unions and employers' organisations) in decision making on
economic matters.
Pluralists often highlight the advantages of group representation over representation through
elections and political parties. Pressure groups may either supplement electoral democracy
(making up for its defects and limitations) or they may have replaced political parties as the
main way in which people express their views and interests:
Pressure groups keep government in touch with public opinion between elections.
One of the weaknesses of elections is that they only take place every few years. By
contrast, pressure groups force the government to engage in an ongoing dialogue with
the people, in which the interests or views of the various sections of society cannot be
ignored. IAC’s anti-corruption movement was one such example where the pressure
groups made the government aware of rising sentiment in general public against
corruption in public life. Mazdoor Kisan Shakti Sangathan led the people’s movement
which got the government to bring about the law on ‘Right to Information. ’
Pressure groups give a political voice to minority groups and articulate concerns that
are overlooked by political parties. Elections, at best, determine the general direction
of government policy, with parties being anxious to develop policies that appeal to the
mass of voters. Pressure groups are therefore often more effective in articulating
concerns about issues such as the environment, civil liberties, global poverty, violence
against women and the plight of the elderly. Women’s organizations such as SEWA,
NCW have campaigned for women-friendly laws such as the Protection of Women from
Domestic Violence Act, 2005. In the North-Eastern State of Manipur, many groups
including ‘Just Peace’,Apunba Lup (students’ organization) and Meira Paibis (women’s
groups) are trying to influence the government to listen to people’s genuine grievances.
Together, these groups are associated with Irom Sharmila, a civil rights activist known
as ‘the Iron Lady of Manipur’ who has been on a hunger strike since November 2000.
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Participation
Education
Pressure groups promote political debate, discussion and argument. In so doing, they create a
better-informed and more educated electorate. This, in turn, helps to improve the quality of
public policy.
Benefits of competition
Pressure groups help to promote democracy by widening the distribution of political power.
They do this, in part, because groups compete against one another. This ensures that no group
or interest can remain dominant permanently.
Some political scientists and politicians have taken the view that pressure groups are non-
democratic, or even anti-democratic, in the sense that they intervene in the political process
based on electoral accountability. Some of them have been listed below:
Political Inequality
A central argument against the pluralist image of group politics is that, far from dispersing
power more widely and empowering ordinary citizens, pressure groups tend to empower the
already powerful. They therefore increase, rather than reduce, political inequality. Pluralists
argue that political inequality is broadly democratic, in that the most successful groups tend to
be ones with large membership, and which enjoy wide and possibly intense public support. This
is very difficult to sustain. In practice, the most powerful pressure groups tend to be the ones
that possess money, expertise, institutional leverage and privileged links to government.
Non-legitimate Power
Critics have questioned whether pressure groups exercise rightful or legitimate power in any
circumstances. This is because, unlike conventional politicians, pressure-group leaders have not
been elected. Pressure groups are therefore not publicly accountable, meaning that the
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influence they exert is not democratically legitimate. This problem is compounded by the fact
that very few pressure groups operate on the basis of internal democracy. Leaders are very
rarely elected by their members, and when they are (as in the case of trade unions) this is often
on the basis of very low turnouts. Indeed, there has been a growing trend for pressure groups
to be dominated by a small number of senior professionals. Some pressure-group leaders may,
in fact, be little more than self-appointed political spokespeople.
Regardless of which groups are most powerful, pressure-group influence is exerted in a way
that is not subject to scrutiny and public accountability. Pressure groups usually exert influence
‘behind closed doors’. This particularly applies in the case of insider groups, whose
representatives stalk the ‘corridors of power’ unseen by the public and away from media
scrutiny. No one knows (apart from occasional leaks) who said what to whom, or who
influenced whom, and how. This is unaccountable power. Not only does this contrast sharply
with the workings of representative bodies such as Parliament, but it also diminishes
Parliament and undermines parliamentary democracy. Insider links between groups and the
executive bypass Parliament, rendering elected MPs impotent as policy is increasingly made
through deals between government and influential groups that the Parliament does not get to
discuss.
Pressure groups, by their very nature, represent minorities rather than majorities. For pluralists,
of course, this is one of their strengths. Pressure groups help to prevent a ‘tyranny of the
majority’ that is, perhaps, one of the inevitable features of electoral democracy. However,
pressure groups may create the opposite problem. Minority views or ‘special’ interests may
prevail at the expense of the interests of the majority or the larger public.
Business Groups
The Business Group is the most important and organised pressure group in India. They are also
most effective. They are independent of the political parties that exist and they have enough
resources with which they can safeguard their interests. Business associations have existed in
India even before Independence. The important business groups include the Confederation of
Indian Industry (CII), Federation of Indian Chambers of Commerce and lndustry (FICCI) and
Associated Chamber of Commerce. They exert varied kinds of pressures, they try to influence
planning, licensing bodies and economic ministries. Some businesspersons are always there in
different legislatures at the Central as well as State level. Every Ministry of the Government of
India has some kind of consultative committee and business groups are represented there.
During pre-budget meetings the Finance Ministry interacts with the groups, to secure suitable
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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Trade Unions
The Indian Trade union movement has rapidly developed. The trade unions were present prior
to Independence. Under communist influence, the All India Trade Union Congress (AITUC) was
established in 1920s. The emergence of the communist movement also played an important
role in the growth of trade unions in India. In 1948, the Indian National Trade Union Congress
(INTUC) was established.
Trade Unions in India are closely affiliated with the political parties; many national political
parties have got their own federations of trade unions. In fact, no amount of independence
from political parties exists in trade unions. They seem to have been able to exert significant
pressure at the policy formulation level and their strength is well recognised by political parties
and government. The trade unions when required can be very vocal and militant in their actions
to meet their demands. They work through the weapon of strike and have been able to achieve
monetary gains in terms of wage increase, bonus, change in wage structure, etc. These types of
pressure groups have been able to encourage class consciousness and class solidarity among
the workers. We have witnessed over the past few years the trade unions resorting to
demonstrations, during the disinvestment by the government in public sector undertakings
over the past few years. lnspite of certain institutional limitations, such as, ideological
differences, internal splits, external pressures, lack of international backing, the trade unions
exert significant pressure at various levels of policy formulation.
Peasant Organisations
The rise of peasants groups in India has been mainly due to abolition of Zamindari System,
implementation of Panchayati Raj, land reform measures, Green Revolution Movement. They
gained power since 1960s. In 1936, the All India Kisan Sabha was established and after 1942 the
Communist Party of India acquired control over it.
Different parties have got their own peasant organisations. Like the trade unions, there is no
peasant organisation, which may be independent of party control, though at the State level,
their organisations are non-political, independent of the political parties and homogenous. The
agriculturists are mainly organised more in regional or local class unions than on all-India basis.
Even though there are some important All India Kisan Associations like All India Kisan Congress,
All India Kisan Kamgar Sammelan, Akhil Bharatiya Kisan Sangh, peasant groups have been
mainly organised on territorial basis.Their demands relate to procurement prices of agricultural
products, fertiliser subsidy, tenancy rights, electricity charges, etc. The Bharatiya Kisan Party
(BKP) in Western U.P. is considered the most significant pressure group. The interplay of
language, caste factor, weak financial positions, etc. have been greatly responsible for non-
emergence of national level pressure groups.
Student Organisations
The student organisations in India have also acted as pressure groups both prior to
Independence and after Independence. The All Bengal Students Association was formed in
1928. The All India Students Federation (AISF) was established in 1936. After Independence the
political parties continue to be affiliated with student organisations. The All India Students
Congress and later on the National Students Union of India (NSUI) are affiliated to the Congress
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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Party. The All India Students Federation and Students Federation of India (SFI) are controlled by
Communist Party of India. The Radical Students Union, Democratic Students Union, Akhil
Bharatiya Vidyarthi Parishad (ABVP) etc. are all affiliated to different political parties. They try to
pressurise governmental policy on various crucial issues, their activities are not just confined to
educational issues. Like the students organisations we also have teachers' associations.
Community Associations
There are various community associations in India. These community groups are organised on
the basis of caste, class and religion. Some examples of caste organisations are Scheduled Caste
Federation, Backward Caste Federation, etc. Amongst other organisations there are some like
Vishwa Hindu Parishad, Northern and Southern India Christian Conference, etc. which represent
interests that are supposed to safeguard their respective religions.
India has a very large number of Civil Society Organizations (CSOs), that is, organizations
established by citizens of the country, to pursue certain interests. Many of these organizations
act as pressure groups on the government, to promote implementation of policies in their areas
of concerns. These organizations are run by ordinary persons who feel strongly committed to
certain issues. Many ordinary persons come together informally or formally to share their
feelings about different issues and prevailing social injustice. People take up issues of gender
discrimination, child labour, street children and so on, and contribute through individual and
collective action. Such organizations are able to mobilize public opinion because these issues
are relevant to many people in society. Some of the Civil Society Organizations include Mazdoor
Kisan Shakti Sangathan (MKSS, Rajasthan), People’s Union for Civil Liberties (PUCL), National
Alliance of People’s Movements (NAPM), National Alliance of Women’s Organizations (NAWO),
Medico Friends Circle (MFC), and many others. Such organizations put pressure on the
government for changing policies on many important issues such as corruption, human rights,
livelihood of different people, environmental protection, women empowerment, educational
and health issues. All these organizations involve a large number of people who struggle to
bring about changes in State policies. Many of the organizations and groups believe in following
non-violent methods.
The pressure groups adopt different methods to realise their goals. These methods even
include cordial rapport with the political party in power, to resorting to agitational methods.
The pressure groups finance the political parties during the election time and sometimes even
during the non-election times. They control the parties through this funding mechanism. There
have been several debates on election finances but no discussion resulted in regulating or
controlling the flow of finances. Once the parties receive financial support, they cannot oppose
these groups and their interests. On the other hand, they have to promote their interests. It is
believed that several members of the national and state legislative bodies are on the rolls of the
top industrial groups. The pressure groups also maintain close rapport with the State apparatus,
viz., the bureaucratic machinery. The organised pressure groups maintain a wavelength with the
key bureaucrats. The role of rampant corruption needs no mention. The liaison officers are
appointed to take care of the bureaucrats, particularly when they are stubborn. The lobbyists,
middlemen, etc. have acquired enough of skills to manage them. This has also given rise to
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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favouritism, corruption and other maladies in bureaucracy. While one cannot find anything
seriously wrong with the pressure groups, it is the methods of operation which have become
controversial. Although all the pressure groups use identical methods, there are some groups
which are far more effective than the others.
a) Leadership
b) Organisational abilities
c) Mass media
d) Economic power base
e) Mobilisation techniques
Leadership
This is one of the essential components of pressure groups. For it is the leadership which has to
protect the interests of the group. It has to be so projected that in public image it is viewed as a
universal interest. The leadership should also regularly communicate to the political parties,
policy-making agencies and the public. The support of all these three forces is essential. The
leadership should be able to establish credibility and be able to carry public opinion. The
leadership should be, therefore, capable of communicating the viewpoint of their group orally,
in writing and through dialogue. In short the success of leadership lies in universalising the
particular interest.
Organisational Abilities
There is also a need for an organisational network. In a country like India with its size and
magnitude, it becomes essential that there are units of the organisation throughout the
country. These organisations are needed for two reasons: firstly to associate the various facets
of the interest groups and consolidate them and secondly, in a highly diversified society,
communication should take place at multiple points so that rapport with different agencies at
different levels is maintained. The size and organisational strength can always play a significant
role in terms of the response of political system to the demands that the pressure group puts
forward.
Mass Media
In India, the mass media is slowly gaining importance. In countries like United States, it has
come to dominate the socio-political process to such a point that can make the things unmake.
In United States it is completely in private sector. In India, the newspapers are by and large
owned by the major industrial houses. Now the regional newspapers are also becoming
influential. The print as well as the Television in present times through their skills of
communication create powerful public images and through continuous debate and propaganda
influence the public opinion. The political parties and policy-making agencies are sometimes
kept on tenterhooks by the media. In fact during the post-Independent India one issue on
which government had to retreat is the issue of freedom of press. Whenever the bills were
introduced either in the state legislature or union parliament, they had to be withdrawn.
Enough public pressure could be built on this issue. For this is a major weapon in the hands of
the industrial houses or private sector to influence the policy-making process.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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The economic power of the interest groups is a crucial factor. The influence a pressure group
commands is proportionate to its economic strength. From financing the elections and party
funds to carrying propaganda, the economic power of the group plays an important role. In
India, the industrial and trading houses have been far more influential and powerful than the
farmers associations, inspite of farmers being spread all over the country. It is clear that without
adequate economic resources the pressure groups cannot exert proper pressure.
Mobilization Techniques
Effectiveness of the pressure groups also depends on their capacity to mobilize the people. The
interest groups not only create public opinion but sometimes draw the general masses into
agitational and protest politics. If they want to set an industry in a particular area, they create
the necessary climate and make the people of the area demand for the industry. If they want
infrastructure facilities they pressurise the government through its network at first and through
a public demand and an agitation, later, if necessary. This is how a major irrigation dam can also
be demanded and realised. In a society where the majority is semi-literate and semiconscious,
private interests can always be converted into public interests.
Firstly, the American pressure groups are regarded as the fourth organ of the government but
the Indian pressure groups are not yet able to play such significant role in politics.
Secondly, in India and Great Britain the cabinet and civil service are the main targets of
pressure groups for lobbying purposes rather than the Parliament. However, the targets of
American pressure groups are the Congress and its committees rather than the President for
lobbying purposes.
Thirdly, Indian pressure groups based on caste, religion, region, etc. are more powerful than
the modern groups like business organisations.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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Fourthly, a significant feature of American pressure groups is that in the USA pressure groups
take interest in foreign policy issues while in India pressure groups do not seem to have interest
in foreign policy matters. Comparatively, the Indian pressure groups are concerned more with
domestic policy issues and problems, and less with foreign policy matters.
However, in general, despite the differences, democratic politics presupposes the crucial role of
pressure groups for serving the interests of different sections of society.
Conclusion:
Pressure groups are now considered as an indispensable and helpful element of the democratic
process. The society has become highly complex and individuals cannot pursue their interests
on their own. They need the support of other fellow beings in order to gain greater bargaining
power. This gives rise to pressure groups based on common interests. For a long time these
groups remained unnoticed. Initially they were considered as harmful for the democratic
process, but now their role in the political process has become very important. Democratic
politics has to be politics through consultation, through negotiation and some amount of
bargaining is also involved. Thus, it is very essential for the government to consult these
organised groups at the time of policy formulation and implementation.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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VISIONIAS ™
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The Act was enacted by the provisional Parliament under Article 327 of Indian Constitution,
before the first general election. Art 327 states that subject to the provisions of our
Constitution, the Parliament is empowered to make provisions by law, with respect to all
matters relating to, or in connection with, elections to either House of Parliament or to the
house or houses of the state legislature including preparation of electoral rolls, the delimitation
of constituencies and all other necessary matters.
Representation of People Act 1951 has undergone several amendments since it was enacted
and currently it has 13 parts from Part I to Part XI with additional parts of IV A and V A. It had
originally 171 sections, but at present there are 192 sections as several new sections have been
inserted, while few sections were also repealed by the Parliament in the past.
Accordingly, the Parliament under Art. 327 enacted certain provisions, among others, namely:
1. The Representation of People Act 1950, which provides for allocation of seats and
delimitation of constituencies of the Parliament and state legislature, officers related to
conduct of elections, preparation of electoral rolls and manner of filling seats in the
Council of States allotted to Union Territories.
2. The Representation of People Act, 1951, which provides for the conduct of elections of
the Houses of Parliament and to the House or Houses of the Legislature of each State,
the qualifications and disqualifications for membership of those Houses, the corrupt
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practices and other offences at or in connection with such elections and the decision of
doubts and disputes arising out of or in connection with such elections.
3. Delimitation Commission Act of 1952, which provides for the readjustment of seats,
delimitation and reservation of territorial constituencies and other related matters.
4. The Presidential and Vice-Presidential Election Act 1952, which provides for the
conduct of Presidential and Vice- Presidential election and mechanism for the
settlement of any dispute arising out of such elections.
Q. What are the qualifications for Members of Parliament (MPs) and Members
of State Legislature (MLAs) mentioned in RPA, 1951?
Chapter-I and Chapter-II of Part II of RPA, 1951 provides for qualifications for Members of
Parliament (MPs) and Members of State Legislature (MLAs), which can be discussed under
following heads:
2. Qualifications for membership of the House of the People (section 4 of RPA, 1951)—
(a) In order to contest a seat reserved for the Scheduled Castes/Scheduled Tribe (other
than those in the autonomous districts of Assam) in any State or Union Territory, he
must be a member of any of the Scheduled Castes/Tribe, whether of that State or
Union Territory or of any other State or Union Territory (excluding the tribal areas of
Assam), and must be elector for any Parliamentary Constituency. However a member of
Schedule Caste or Schedule Tribe can also contest a seat not reserved for them.
(b) In order to contest a seat reserved for the Scheduled Tribes in the autonomous
districts of Assam, he must be a member of any of those Scheduled Tribes and must be
an elector for the Parliamentary constituency in which such seat is reserved or for any
other Parliamentary constituency comprising any such autonomous district;
The protective mechanism as in case of Assam mentioned above applies to
Lakshadweep and Sikkim.
(c) In order to contest for any other seat, he must be an elector for any Parliamentary
constituency.
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of those tribes, as the case may be, and must be an elector for any Assembly
constituency in that State or Union Territory;
(b) In order to contest a seat reserved for an autonomous district of Assam, he must be
a member of a Scheduled Tribe of any autonomous district and must be an elector for
the Assembly constituency in which such seat or any other seat is reserved for that
district; and
(c) In order to contest any other seat, he must be an elector for any Assembly
constituency in that State or Union Territory.
(d) In order to be qualified to be chosen to fill any seat allocated to the Tuensang
district in the Legislative Assembly of Nagaland for the period referred to in clause (2)
of article 371A, he must be a member of the regional council referred to in that article.
2. Section 5A mentions some special provisions regarding Qualifications for membership
of Legislative Assembly of Sikkim.
3. Qualifications for membership of a Legislative Council—
(a) In order to be qualified to contest a seat of Legislative Council of a State or Union
Territory to be filled by election, he must be an elector for any Assembly constituency in
that State.
(b)In order to be qualified to be chosen for a seat in the Legislative Council of a State or
Union Territory to be filled by nomination by the Governor he must be an ordinarily
resident in the State or Union Territory.
RPA, 1951in chapter III of part II provides for 8 different grounds for disqualification for
Membership of Parliament and State legislatures:
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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However it is mentioned in section 11 of RPA, 1951 that election commission may, for the
reason to be recorded, remove any of the above disqualification except under section 8A or
reduce the period of any such disqualification.
However, Section 11B provides that election commission may, for reason to be recorded,
remove any disqualification except under section 8A.
Election to the House of People: For general election to the House of the people, the President,
by one or more notifications published in the Gazette of India on such date or dates, as may be
recommended by the Election Commission, calls upon all Parliamentary constituencies to elect
members. No such notification can be issued at any time earlier than six months prior to the
date on which the duration of that House would expire, except in the case of dissolution of the
existing House of People.
Election to the Council of States: In case of biennial election to the Council of State for the
purpose of filling the seats of members of the Council of States retiring on the expiration of
their term of office the President, by one or more notifications published in the Gazette of India
on such date or dates as may be recommended by the Election Commission, calls upon the
elected members of the Legislative Assembly or, as the case may be, the members of the
electoral college, of each State concerned to elect members. No such notification can be issued
more than three months prior to the date on which the term of office of the retiring members
is due to expire.
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Similarly for the elections to state legislature, Governor plays the role mentioned for the
President in case of House of People under exactly same conditions.
Chief Electoral Officer: The Election Commission of India nominates or designates an Officer of
the Government of the State/Union Territory as the Chief Electoral Officer in consultation with
that State Government/Union Territory Administration. Chief Electoral Officer of a State/
Union Territory is authorized to supervise the election work in the State/Union Territory subject
to the overall superintendence, direction and control of the Election Commission.
District Election Officer: The EC nominates an Officer of the State Government as the District
Election Officer in consultation with the State Government. The district election officer is
authorized to coordinate and supervise all work in the district or in the area within his
jurisdiction in connection with the conduct of all elections to Parliament and the Legislature of
the State subject to the superintendence, direction and control of the chief electoral officer.
With the previous approval of the Election Commission, DEO provides a sufficient number of
polling stations for every constituency the whole or greater part of which lies within his
jurisdiction, and publishes a list showing the polling stations so provided and the polling areas
or groups of voters for which they have respectively been provided.
Observer: The Election Commission may nominate an Observer who shall be an officer of
Government to watch the conduct of election or elections in a constituency or a group of
constituencies. Earlier, the appointment of Observers was made under the plenary powers of
the Commission. But with the amendments made to the Representation of the People Act,
1951 in 1996, these are now statutory appointments. They report directly to the Commission.
The Observer has the power to direct the returning officer for the constituency or for any of the
constituencies for which he has been nominated, to stop the counting of votes at any time
before the declaration of the result or not to declare the result if in his opinion booth
capturing has taken place. In case of stopping the counting of votes or non-declaration of result,
a report shall be sent by the Observer to the EC, which issue appropriate directions.
Returning Officer: The Election Commission of India nominates or designates an officer of the
Government or a local authority as the Returning Officer for each of the assembly and
parliamentary constituencies in consultation with the State Government/Union Territory
Administration. Same person can be appointed as the returning officer for more than one
constituency. In addition, the Election Commission of India may appoint one or more Assistant
Returning Officers for each of the assembly and parliamentary constituencies to assist the
Returning Officer in the performance of his functions in connection with the conduct of
elections. Every such person must be an officer of Government or of a local authority.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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Every assistant returning officer, subject to the control of the returning officer, is competent to
perform all or any of the functions of the returning officer except functions which relate the
scrutiny of nominations unless the returning officer is unavoidably prevented from performing
the said function. While Returning officer may always include an assistant returning officer in
performing any function which he is authorized to perform him.
It is the general duty of the returning officer at any election to do all such acts and things as
may be necessary for effectually conducting the election in the manner provided by RPA,
1951and rules or orders made there under.
Presiding Officer: The district election officer appoints a presiding officer for each polling
station. If a polling officer is absent from the polling station, the presiding officer may appoint
any person who is present at the polling station other than a person who has been employed
by or on behalf of, or has been otherwise working for, a candidate in or about the election, to
be the polling officer during the absence of the former officer, and inform the district election
officer accordingly. Same person can be the presiding officer for more than one polling station
in the same premises. It is the general duty of the presiding officer at a polling station to keep
order thereat and to see that the poll is fairly taken.
Polling Officer: A polling officer performs all or any of the functions of a presiding officer based
upon his direction. If the presiding officer is absent from the polling station due to illness or
other unavoidable cause, his functions shall be performed by such polling officer as has been
previously authorized by the district election Officer to perform such functions during any such
absence. It is the duty of the polling officers at a polling station to assist the presiding officer for
such station in the performance of his functions.
The returning officer, assistant returning officer, presiding officer, polling officer, and any other
officer appointed so and any police officer designated for the time being by the State
Government, for the conduct of any election shall be deemed to be on deputation to the
Election Commission during the election period and such officers shall be subject to the control,
superintendence and discipline of the Election Commission.
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The application must be accompanied by a copy of the memorandum or rules and regulations
of the association or body and such memorandum or rules and regulations must contain a
specific provision that the association or body shall bear true faith and allegiance to the
Constitution of India as by law established, and to the principles of socialism, secularism and
democracy, and would uphold the sovereignty, unity and integrity of India.
After considering all the particulars as aforesaid in its possession and any other necessary and
relevant factors and after giving the representatives of the association or body reasonable
opportunity of being heard, the Commission decides either to register the association or body
as a political party, or not so to register it; and the Commission communicates its decision to
the association or body. The decision of the Commission is final.
Every political party may accept any amount of contribution voluntarily offered to it by any
person or company other than a Government company, but no political party can accept any
contribution from any foreign source.
The treasurer or any other person authorized by the political party must prepare a report in
each financial year listing the contribution in excess of twenty thousand rupees received by
such political party from any person or company (Other than Government) in that financial year.
This report must be submitted to the Election Commission before the due date for furnishing a
return of its income of that financial year. If the political party fails to submit a report then it
shall not be entitled to any tax relief.
A recognized political party shall either be a National party or a State party. A political party
shall be treated as a recognized National party, if, and only if:
1) If it secures six per cent of valid votes polled in any four or more states at a general
election to the Lok Sabha or to the legislative assembly; and, in addition, it wins four
seats in the Lok Sabha from any state or states; or
2) If it wins two per cent of seats in the Lok Sabha at a general election; and these
candidates are elected from three states; or
3) If it is recognised as a state party in four states.
At present there are 6 national parties in the country namely BJP, BSP, CPI, CPM, INC and NCP.
A political party, other than a National party, shall be treated as a recognized State party in a
State or States, if, and only if:
1) If it secures six per cent of the valid votes polled in the state at a general election to the
legislative assembly of the state concerned; and, in addition, it wins 2 seats in the state
assembly; or
2) If it secures six per cent of the valid votes polled in the state at a general election to the
Lok Sabha from the state concerned; and, in addition, it wins 1 seat in the Lok Sabha
from the state concerned; or
3) If it wins three per cent of seats in the legislative assembly at a general election to the
legislative assembly of the state concerned or 3 seats in the assembly, whichever is
more; or
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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4) If it wins 1 seat in the Lok Sabha for every 25 seats or any fraction thereof allotted to
the state at a general election to the Lok Sabha from the state concerned; or
5) If it secures eight per cent of the total valid votes polled in the state at a General
Election to the Lok Sabha from the state or to the legislative assembly of the state. This
condition was added in 2011.
The status of national or state party is contingent on the performance of a political party’s
performance the respective elections. Thus the number of National or State parties vary
depending on the assembly or General elections.
The candidates of recognized parties are entitled for free supply of certain materials like such
number of copies of electoral rolls, as finally published under the Representation of the
People Act, 1950 and such other material as may be prescribed. The Central Government in
consultation with the Election Commission can decide items to be supplied to the recognised
political parties.
When the term of the legislature is over, or the legislature has been dissolved and new
elections have been called, the Election Commission puts into effect the machinery for holding
an election. In case of Lok Sabha elections have to be concluded before the limit of 6 months
that is stated by the Constitution as maximum possible duration between the last session of
dissolved Lok Sabha and the recalling of new House.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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nominated candidates can withdraw from the contest within two days from the date of scrutiny.
About two weeks, before actual poll date, is given to contesting candidates for political
campaign. For national election polling is held on a number of days, this is because of the vast
magnitude of operations involved and massive size of electorates. A separate date for counting
is fixed and result is declared for every constituency by the concerned returning officer. The
complete list of the members elected is compiled by the commission and it issues an
appropriate notification for due constitution of house. This marks the completion of election
process.
It is necessary for a candidate to make and subscribe an oath or affirmation before an officer
authorized by the election commission (Returning Officer or Asst. Returning officer). The
candidate, in person, is required to make the oath or affirmation immediately after presenting
his nomination paper and in any case not later than the day previous to the date of scrutiny.. In
the case of a candidate confined in a prison or under preventive detention, the superintendent
of the prison or the commandant of the detention camp in which he is so confined or is under
such detention is authorized to administer the oath and in the case of candidate confined to a
bed in a hospital or elsewhere owing to illness or any other cause, the medical superintendent
in charge of the hospital or the medical practitioner attending on him is similarly authorized. If
the candidate is outside India, the Indian Ambassador of High Commissioner or diplomatic
consular authorized by him can also administer oath/affirmation.
Election Campaign
The campaign is the period when the political parties put forward their candidate and argument
with which they hope to persuade people to vote for their candidates and parties. Candidates
are given a week to put forward their nomination. These are scrutinized by the Returning
Officers and if not found in order can be rejected after a summary hearing. The official
campaign lasts at least two weeks from the drawing up of the list of nominated candidate and
officially ends 48 hours before polling closes.
During the election campaign, political parties and contesting candidates are expected to abide
by the model code of conduct evolved by the election commission on the basis of a consensus
among political parties. The model code lays down broad guidelines as to how the political
parties and candidates should conduct themselves during the election campaign. It is intended
to maintain the election campaign on healthy lines avoid clashes or conflict between political
parties and their supporters and to ensure peace and order during the campaign period and
thereafter until the results are declared. The model code also prescribes guidelines for the
ruling party either at the centre or in the state so that a level field is maintained and ensures
that ruling party does not use its official position for election campaign.
Once an election has been called, parties issue manifesto detailing the programmes they wish
to implement if elected to government, the strength of their leaders and weaknesses of
opposite party and their leaders.
Voting procedure
Voting is by secret ballot. Polling stations are usually set up at public institutions such as schools
and community halls. To enable as many electors as possible to vote the officials of election
commission try to ensure that there is a polling station within two kilometer of every voter, and
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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that no polling station should have to deal with more than 1500 voters. Each polling station is
open for at least 8 hours on the day of the election.
An EVM is a simple electronic device used to record votes in place of ballot papers. EC took a
decision to use only EVMs in 2004 Lok Sabha elections. SC has passed a judgement to equip all
EVMs with VVPAT (Voter Verifiable Paper Audit Trail).It has following advantages over
traditional voting mechanism:
1) It eliminates the possibility of invalid/doubtful vote which in many cases are the root
causes of controversies and election petitions.
2) It makes the process of counting of votes much faster than the conventional system.
3) It is eco-friendly as it reduces the use of paper.
Q. What are the provisions related to the declaration of assets and liabilities by
elected candidate in RPA, 1951?
Section 75A of RPA, 1951 states that every elected candidate for either houses of Parliament
shall furnish information regarding relating to the movable and immovable property owned by
him, his spouse or his children; the liabilities to any public financial institution or to the Central
Government or State Government within ninety days from the date of subscribing an oath for
taking a seat in Parliament.
The information shall be furnished in such form and in such manner as may be prescribed in the
rules made by the Chairman of the Council of States or the Speaker of the House of the People,
as the case may be. Any willful contravention of such rules by an elected candidate for a House
of Parliament is dealt with in the same manner as a breach of privilege of the Council of States
or the House of the People, as the case may be.
Q. What are the provisions related to the election expenses by the candidate in
RPA, 1951?
According to the section 77 of RPA, 1951, every candidate contesting in election to the House of
the People or to the Legislative Assembly of a State, shall, either by himself or by his election
agent, keep a separate and correct account of all expenditure in connection with the election
incurred or authorized by him or by his election agent.
Every contesting candidate at an election shall, within thirty days from the date of election of
the elected candidate or, if there are more than one elected candidate at the election and the
dates of their election are different, the later of those two dates, lodge with the district
election officer an account of his election expenses which shall be a true copy of the account
kept by him or by his election agent.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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An election petition calling in question any election may be presented to the High Court by any
candidate at such election or any elector within forty-five days from, but not earlier than the
date of election of the elected candidate, or if there are more than one elected candidate at the
election and the dates of their election are different, the later of those two dates.
a. that on the date of his election a returned candidate was not qualified, or was
disqualified, to be chosen to fill the seat under the Constitution or this Act or the
Government of Union Territories Act, 1963; or
b. that any corrupt practice has been committed by a returned candidate or his election
agent or by any other person with the consent of a returned candidate or his election
agent; or
c. that any nomination has been improperly rejected; or
d. that the result of the election, in so far as it concerns an elected candidate, has been
materially affected—
i. by the improper acceptance or any nomination, or
ii. by any corrupt practice committed in the interests of the elected candidate by
an agent other than his election agent, or
iii. by the improper reception, refusal or rejection of any vote or the reception of
any vote which is void, or
iv. by any non—compliance with the provisions of the Constitution or of RPA, 1951
or of any rules or orders made under RPA, 1951,
An election petition:
a. must contain a concise statement of the material facts on which the petitioner relies;
b. must set forth full particulars of any corrupt practice that the petitioner alleges,
including as full a statement as possible of the names of the parties alleged to have
committed such corrupt practice and the date and place of the commission of each
such practice.
Every election petition shall be tried as expeditiously as possible and endeavour shall be made
to conclude the trial within six months from the date on which the election petition is
presented to the High Court for trial. If the High Court upholds the election petition on the one
or more of the above grounds it declares the election of the selected candidate to be void.
At the conclusion of the trial of an election petition the High Court makes an order—
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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c. declaring the election, of all or any of the returned candidates to be void and the
petitioner or any other candidate to have been duly elected
It is to be noted that according to section 170 of RPA, 1951 no civil court has jurisdiction to
question the legality of any action taken or of any decision given by the returning officer or by
any other person appointed under this act in connection with an election.
Section 123 defines the corrupt practices like bribery, undue influence, inciting religious
sentiments, booth capturing etc.
1. Bribery: Any form of gratification (including gift, reward or an offer) to the electors for voting
or refraining from voting and to the candidates for withdrawing or not withdrawing nomination
is considered as a corrupt practice under RPA. Under RPA, the person accepting such
gratifications is also considered guilty of indulging in corrupt practices. The term "gratification"
implies monetary gratifications as well as all forms of entertainment and all forms of
employment for reward.
2. Undue influence includes any direct or indirect interference with the free exercise of any
electoral right by the candidate or his election agent. But a declaration of public policy, or a
promise of public action, or the mere exercise of a legal right without intent to interfere with an
electoral right, shall not be deemed to be interference.
3.Appeal to vote or refrain from voting for any person on the ground of his religion, race,
caste, community or language or the use of, or appeal to religious symbols or the use of, or
appeal to, national symbols, such as the national flag or the national emblem, for the
furtherance of the prospects of the election of that candidate or for prejudicially affecting the
election of any candidate:
4. The promotion of feelings of enmity or hatred between different classes of the citizens of
India on grounds of religion, race, caste, community, or language
6. The publication of any false statement of fact in relation to the personal character or
conduct of any candidate
7. The hiring or procuring of any vehicle or vessel or the use of such vehicle or vessel for the
free conveyance of any elector (other than the candidate himself, the members of his family or
his agent) to or from any polling station.
*Vehicle hired by electors for themselves by sharing costs is not considered corrupt practice if
the vehicle/vessel in not propelled by mechanical power. Use of any public transport by any
elector at his own cost for the purpose of going to or coming from any such polling station or
place fixed for the poll is not considered to be a corrupt practice.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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9. The obtaining or procuring or abetting any assistance (other than the giving of vote) for the
furtherance of the prospects of that candidate's election, from any person in the service of the
Government and belonging to any of the following classes, namely gazetted officers; stipendiary
judges and magistrates; members of the armed forces of the Union; members of the police
forces; excise officers; revenue officers etc.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Code of Conduct
Q. Explain the concept of model code of conduct along with its evolution. Also
Describe the effects of applying the model code of conduct as well as its
enforcement.
Free and fair elections form the bedrock of democracy. This envisages a level playing field for
the contestants and an equal opportunity for all parties for presenting their policies and
programmes to voters. In this context the Model Code of Conduct(MCC) gains relevance. The
need of MCC is felt for the following reasons:
i. to provide a level playing field for all political parties, keep the campaign fair and
healthy, avoid clashes and conflicts between parties, and ensure peace and order.
ii. to ensure that the ruling party, either at the Centre or in the states, does not
misuse its official position to gain an unfair advantage in an election.
The MCC is a set of norms for conduct and behavior on the part of the Parties and candidates,
in particular. The uniqueness of the MCC is the fact that this was a document that originated
and evolved with the consensus of the political parties. The origin of the MCC dates back to
1960 when the MCC started as a small set of Dos and Don’ts for the Assembly election in Kerala
in 1960. The Code covered conducting of election meetings/processions, speeches, slogans,
posters and placards. In 1962 Lok Sabha General Elections, the Commission circulated this code
to all the recognized political parties and the State Governments were requested to secure the
acceptance of the Code by the Parties. The Model Code of Conduct was consolidated and
issued in the current form in 1991.
• In 1968, the Election Commission held meetings with political parties at State level and
circulated the Code of Conduct to observe minimum standard of behavior to ensure
free and fair elections.
• In 1971-72, during General Election to the House of the People/State Legislative
Assemblies the Commission circulated the Code again.
• At the time of general elections to some State Assemblies in 1974, the Commission
issued the code of conduct to the political parties in those States.
• The Commission also suggested constituting committees at district level headed by the
District Collector and comprising representatives of political parties as members for
considering cases of violation of the code and ensuring its compliance by all parties and
candidates.
• For the 1977 Lok Sabha general election, the Code was again circulated to the political
parties.
• In 1979, Election Commission, in consultation with the political parties further
amplified the code, adding a new Section placing restrictions on the “Party in power”
so as to prevent cases of abuse of position of power to get undue advantage over other
parties and candidates.
• In 1991, the code was consolidated and re-issued in its present form.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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i. The present code contains guidelines for general conduct of political parties and
candidates (no attack on private life, no appeal to communal feelings, discipline and
decorum in meetings, processions, guidelines for party in power – official machinery
and facilities not to be used for electioneering, prohibition against Ministers and other
authorities in announcing grants, new schemes etc).
ii. Ministers and those holding public offices are not allowed to combine official visits with
electioneering tours.
iii. Issue of advertisements at the cost of public exchequer is prohibited.
iv. Grants, new schemes / projects cannot be announced. Even the schemes that may have
been announced before the MCC came into force, but that has not actually taken off in
terms of implementation on field are also required to be put on hold.
v. It is through such restrictions that the advantage of being in power is blunted and the
contestants get the opportunity to fight on more or less equal terms.
Enforcement
MCC has got the judicial recognition of the highest court of land. The dispute over the date
when the Model Code of Conduct should come into force, the issuance of the press release by
EC announcing the poll dates or the date of actual notification in this regard was resolved in
the Union of India V/s Harbans Sigh Jalal.
The apex court gave the ruling that the Code of Conduct would come into force the moment
the Commission issues the press release, which precedes the notification by a good two weeks.
This ruling lay at rest the controversy related to the dates of enforcement of MCC. Thus the
MCC remains in force from the date of announcement of elections till the completion of
elections.
Q. Comment on the legal status of conduct. In what way can the MCC be made
more effective?
The Model Code of Conduct does not a have a statutory backing and it is more a consensus
driven code arrived at after consultation with all political parties to ensure free and fair
elections and to see that the ruling party does not misuse its dominant position.
The Parliamentary Standing Committee on Law and Justice recommended in its 2013 report
that statutory status be accorded to the MCC. The committee held that most of the stipulations
of the MCC are already contained in various laws and are therefore enforceable like the
violation of secrecy of voting, causing enmity among communities, the prohibition of public
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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meetings 48 hours prior to the conclusion of polls, besides other offences, are covered by the
Representation of People Act, 1951. Besides, impersonation at voting, offering inducements to
voters, or accepting gratification to do something they never intended, amount to bribery
under the Indian Penal Code.
On the basis of the above, the Standing Committee contends that the MCC as a whole could not
be construed merely as voluntary in its application. Furthermore, since most of its provisions
are enforceable, the remaining stipulations in the MCC should also be accorded statutory
backing.
Another reason for the above recommendation by the Standing Committee is the absence of an
immediate appeal mechanism against the decision of the returning officer to cancel the
nomination of a candidate. In this case, the decision can only be challenged in the High Court
after the announcements of election results.
1. The decision making power will go to the Judiciary and thus the swiftness, expedition
and promptness in dealing with the cases of violation of MCC will be gone.
2. If the model code of conduct is converted into a law, this would mean that a complaint
would lie to the police/Magistrate. The procedures involved in judicial proceedings
being what they are, a decision on such complaints would most likely come only long
after the election is completed.
3. The legal codification of these norms would be a potential nightmare, exposing the
entire electoral process to needless litigation. The broad objectives of MCC are best
achieved by oversight of an impartial election watchdog.
Q. The Supreme Court has taken a lead over the Parliament as far a selectoral
reforms are concerned. Discuss in light of recent judicial pronouncements.
The following Supreme Court judgments were directed towards bringing electoral reforms:
For a person to be qualified for the membership of legislature, Representation of People Act,
1951 states that one has to be an ‘elector’ as defined in Section 2(e). Section 2(e) defines an
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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elector as “a person whose name is entered in the electoral roll of that constituency and who is
not subject to any of the disqualifications mentioned in section 16 of the RP Act, 1950.”
As the law mentions Section 16 of RPA, 1950 as the basis of disqualification from being an
elector, the SC relied on Section 62(5) which does not define ‘elector’ and only debars a person
in jail from voting, not from contesting an election. Thus Section 62(5) distinguishes between an
‘elector’ and ‘voter’.
The Supreme Court’s judgement effectively amends the law passed by the Parliament.
Section 8 of the Representation of People Act, 1951 deals with disqualification on conviction
for certain offences: A person convicted of any offence and sentenced to imprisonment for
varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction
and shall continue to be disqualified for a further period of six years since his release. But
Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office
even after conviction if an appeal is filed within three months.
The Bench found it unconstitutional that convicted persons could be disqualified from
contesting elections but could continue to be Members of Parliament and State Legislatures
once elected.
The constitution enlists the disqualification criteria in Article 102(1) includes office of profit,
unsound mind undischarged insolvency and citizenship. This article also empowers the
Parliament to make law specifying any other criterion for disqualification. In accordance with
the constitutional mandate, the Parliament enacted the RPA 1951, mentioning the
disqualification criteria in Section 8.
The Supreme Court has given two reasons for its verdict: First, it held Section 8(4) to be in
violation of Article 102, and its corresponding provision for the States, Article 191, of the
Constitution. A careful reading of the article 102 clearly empowers the Parliament to define the
criterion for disqualification by enacting a law and none of the five clauses of Article 102(1) are
attracted to invalidate Section 8(4).
Second, the Supreme Court has held that Parliament had no legislative competence to enact
Section 8(4). This reasoning, too, is difficult to accept because Entry 72 to List 1 of the 7th
Schedule in the Constitution specifically allows Parliament to legislate on elections to
Parliament or the State legislatures. It is well-settled that legislative entries in the Constitution
are to be widely construed, and in any case Parliament has residual power to legislate under
Entry 97 to List 1.
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Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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The NOTA option would indeed compel political parties to nominate sound candidates. The
bench noted that giving right to a voter not to vote for any candidate while protecting his right
of secrecy is extremely important in a democracy. Such an option gives the voter the right to
express his disapproval of the kind of candidates being put up by the parties. Gradually, there
will be a systemic change and the parties will be forced to accept the will of the people and
field candidates who are known for their integrity.
The right to cast a negative vote will foster the purity of the electoral process and also fulfill one
of its objectives, namely, wide participation of people. Not allowing a person to cast a negative
vote would defeat the very freedom of expression and the right to liberty.
The Bench held that Election Conduct Rules 41(2) and (3) and 49-O of the Rules were ultra vires
Section 128 of the Representation of the People Act and Article 19(1)(a) of the Constitution to
the extent they violate secrecy of voting.
It was stated in the petition that the freebies amounts to bribery under Section 123(1). The
Supreme Court rejected the contention that the promises made by a political party are violative
of Section 123(1) of the RPA. The provisions of the RPA place no fetter on the power of political
parties to make promises in the election manifesto, the court held.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Secondly, the court held that the concept of state largesse is essentially linked to the Directive
Principles of State Policy. Whether the state should frame a scheme, which directly gives
benefits to improve the living standards or indirectly does so by increasing the means of
livelihood, is for the state to decide and the role of the court is very limited in this regard. It
held that judicial interference was permissible when the action of the government was
unconstitutional and not when such action was not wise or when the extent of expenditure was
not for the good of the state.
The court, however, agreed with the appellant that distribution of freebies of any kind
undoubtedly influenced all people. “Freebies shake the root of free and fair elections to a large
degree,” it said.
Considering that there was no enactment that directly governed the contents of the election
manifesto, the court directed the E.C. to frame guidelines for the same in consultation with all
the recognised political parties. The court also suggested the enactment of a separate law for
governing political parties.
The Allahabad high court stayed caste-based rallies in Uttar Pradesh , a move that will block off
a key avenue that the major political parties use to expand their support base, especially before
elections.
The Lucknow bench of the high court sent a notice staying caste-based rallies to four major
political parties, the Union and the state governments, and the Election Commission. The four
parties are the Congress, the Bharatiya Janata Party (BJP), the Samajwadi Party (SP) and the
Bahujan Samaj Party (BSP).
Holding political rallies by certain groups to address issues specific to them and seeking to win
their electoral support is a common practice in the country, most prominently in Uttar Pradesh,
where two of the major parties have specific caste bases. The petitioner said there had been a
spurt of such rallies in the state, damaging social unity and harmony, and that they were against
the spirit of the Constitution.
There is no legal bar to a caste rally, as long as no law is violated. In fact, Article 19(1)(b) of the
Constitution gives citizens a Fundamental right to assemble peacefully. A political party can call
a meeting of a caste, for example, of Dalits to discuss the problems facing that community, and
there is no law barring such a meeting.
The aforementioned decisions of the Supreme Court and the Allahabad High Court may be
perceived as making or amending the law, a function that is in the domain of the legislature.
The Supreme Court on 13th Sep, 2013 ruled that returning officer can reject nomination papers
of a candidate for non-disclosure and suppression of information, including that of assets and
their criminal background. The apex court said that voters have fundamental right to know
about their candidates and leaving columns blank in the nomination paper amounts to violation
of their right.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
The court passed the judgment on a PIL filed in 2008 by NGO Resurgence India, a civil rights
group, which detected a trend among candidates of leaving blank the columns demanding
critical information about them.
The Election Commission had supported the NGO's plea that no column should be allowed to
be left blank which tantamount to concealing information and not filing complete affidavit. It
had also taken a stand that the returning officer should be empowered to reject the nomination
papers of a candidate who provides incomplete information by leaving some columns blank in
the affidavit.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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1. INTRODCUTION
The founding fathers of India opted for a Parliamentary democracy as the appropriate model for a large
and diverse country like ours. Conducted once in a five year, general election of India is an attempt in the
direction.
THE REPRESENTATION OF THE PEOPLE ACT, 1951 is a model Act which provides the legislative
framework for:
• The conduct of elections to the Parliament and state assemblies.
• The qualifications and disqualifications for membership.
• The code of conduct against illegal practices
Election Commission (EC), a constitutional body, is assigned to take the mammoth exercise of conducting
general elections under the act. The code of conduct is developed by the commission for carrying the
elections in fair manner. However, the elections are marred with several issues, a few of which are as
identified:
lakh for an Assembly seat. The funding limits are revised by EC over a period of time. It is also
recommended that the govt. should establish a national corpus for elections funding.
• The Election Commission also recommends that the Secretariat of the Election Commission,
consisting of officers and staff at various levels is also insulated from the interference of the
Executive in the matter of their appointments, promotions, etc. All such functions are exclusively
vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, and Rajya
Sabha, Registries of the Supreme Court and High Courts etc.
• The third recommendation of the Election Commission is that its budget be treated as “Charged” on
the Consolidated Fund of India.
The consequence is that a bye-election would be required from one constituency which apart from involving
avoidable labour and expenditure on the conduct of that bye-election. The commission recommends that a
person cannot contest from more than one constituency at a time.
petition on a day to day basis. In practice, however, cases involving election petitions are rarely resolved in
a timely manner. NCRWC recommended that special election benches designated for election petitions only
should be formed in the High Court. Special Election Tribunals should be constituted at the regional level
under to ensure speedy disposal of election petitions and disputes within a stipulated period of six months.
3.5 Mizoram
Assembly constituencies were redrawn in 2008 based on the orders of the Delimitation Commission. The
Commission reduced the seats reserved for Scheduled Tribes (STs) in Mizoram from 39 to 38 out of a total
of 40 seats. This Bill reverses the number of reserved seats for STs back to 39.
VISION IAS ™
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CONTENT
6. Attorney General
8. Finance Commission
The Constitution of India has vested in the Election Commission (EC) of India the superintendence, direction and control
of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President
and Vice-President of India.
Originally, the commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner
and two Election Commissioners. For the first time two additional Commissioners were appointed on 16th October 1989
but they had a very short tenure till 1st January 1990. Later, on 1st October 1993 two additional Election Commissioners
were appointed. The concept of multi-member Commission has been in operation since then, with decision making power
by majority vote.
No election to either House of Parliament or either House of the Legislature of a State shall be called in question
except by an election petition. Any elector or candidate can file an election petition on grounds of malpractice during
the election. In respect of elections to the Parliament and State Legislatures they can only be filed before the High
Court and in respect of elections for the offices of President and Vice-President, such petitions can only be filed before
the Supreme Court.
1. EC shall consist of the chief election commissioner and such number of other election commissioners, if any, as the
president may from time to time fix (presently CEC + 2 ECs)
2. The appointment of the chief election commissioner and other election commissioners shall be made by the president
3. The president may also appoint after consultation with the election commission such regional commissioners as he
may consider necessary to assist the election commission
4. The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be
determined by the president
5. When any election commissioner is appointed, the chief election commissioner acts as the Chairman of the Election
Commission
6. The chief election commissioner and the two election commissioners draw salaries and allowances at par with those of
the Judges of the Supreme Court of India
7. The chief election commissioner or an election commissioner holds office for a term of 6 years from the date on which
he assumes his office or till he attains the age of 65 years, whichever is earlier
8. Election commissioner or a regional commissioner shall not be removed from office except on the recommendation
of the chief election commissioner
The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991, as amended,
provides that in case of difference of opinion on any matter, such matter shall be decided by the opinion of the majority.
Thus the CEC cannot over-ride any decision of the commission by himself. As Chairman of the Election Commission he
presides over the meetings, conducts the business of the day and ensures smooth transaction of business of the commission.
1. The commission has the power to disqualify a candidate who has not lodged an account of his election expenses
within the time and in the manner prescribed by law. The commission also has the power to remove/reduce the period
such disqualifications ad any other disqualification under the law
2. It has quasi-judicial jurisdiction in the case of settlement of disputes between the splinter groups of a recognised party
The party system is an essential feature of parliamentary democracy. However, there is no direct reference of political
parties in the Constitution of India. The statutory law relating to registration of political parties was enacted in 1989 which
was quite liberal. As a result, a large number of non-serious parties mushroomed and got registered with the Commission.
Many of them did not contest elections at all after their registration. It led to confusion among electors as to whom to vote.
To eliminate the mushrooming of parties, the EC had to take some rigorous steps:
• The Commission now registers a party which has at least 100 registered electors as its members and is also
charging a nominal processing fee of Rs 10,000 to cover the administration expenses which it will have to incur
on correspondence with the parties after their registration.
• In order to ensure that the registered political parties practice democracy in their internal functioning, the
Commission requires them to hold their organizational elections regularly in accordance with their constitutions.
The measures taken by the EC to streamline the registration of political parties have shown effective results.
i. EVMs:
EC has been trying to bring improvements in election procedures by taking advantage of scientific and technological
advancements. The introduction of ‘electronic voting machines’ (EVMs) is one of the steps in that direction by
reducing malpractices and also improving the efficiency of the voting process. On an experimental basis, the EVMs
were first tried in the State of Kerala during the 1982 Legislative Assembly Elections. In June 1999 Assembly
elections, Goa became the first State to successfully use EVMs in all its Assembly constituencies. In the 2004 Lok
Sabha elections, the machines were used all over the country.
It is a major initiative taken by the EC to make the electoral process simple, quick and trouble-free. It has saved
money, solved several logistical issues and also contributed to the conservation of environment through saving of
paper. Another major advantage of these machines is that the counting of votes becomes more fast and accurate.
ii. IT:
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EC has not lagged behind in making use of Information Technology for efficient electoral management and
administration. It launched a website of its own in 1998. This is now a good source to have accurate information about
elections, election laws, manuals and handbooks published by the Commission.
iv EPICs:
In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the Election Commission in
August 1993 ordered the issuance of electors’ photo identity cards (EPICs) for all voters. During the 2004 Assembly
elections, it was mandatory for people possessing EPICs to furnish it at the time of voting. The distribution of EPICs,
on the part of Election Commission, was a major step to reduce electoral malpractices. Only genuine voters were listed
in the rolls with the issuance of voter identity cards.
for prejudicially affecting the prospect of election of any candidate be made an electoral offence with punishment of a
minimum of two years imprisonment.
Summing Up
Over the years, EC has conducted a number of laudable electoral reforms to strengthen democracy and enhance the fairness
of elections. These reforms are quite adequate and admirable. Undoubtedly, the election machinery, under the aegis of the
EC, deserves credit for conducting elections in a free and fair manner.
However, our system is still plagued by many vices. To win votes, political parties resort to foul methods and corrupt
practices. Such maladies encourage the anti-social elements to enter the electoral fray. The problem is not lack of laws, but
lack of their strict implementation. In order to stamp out these unfair tendencies, there is a need to strengthen the hands of
the EC and to give it more legal and institutional powers. The EC must be entrusted with powers to punish the errant
politicians who transgress and violate the electoral laws.
CAG helps the parliament/state legislatures hold their respective governments accountable. He is one of the bulwarks of
the democratic system of government in India; the others being the SC, the ECI and the UPSC. It is for these reasons Dr. B
R Ambedkar said that the CAG shall be the most important Officer under the Constitution of India and his duties are far
more important than the duties of even the judiciary.
Why Comptroller?
In the 15th century, the word Controller developed the alternate spelling Comptroller as a result of an association between
the first part of the word, cont, and an unrelated word count and its variant, compt. Many people pronounce comptroller
like controller but both are acceptable. But the word Comptroller has a different meaning-someone who maintains and
audits business. Comptrollers are controllers but controllers are not comptrollers.
The reports of the Comptroller and Auditor-General of India relating to the accounts of a State shall be submitted to the
Governor of the State, who shall cause them to be laid before the Legislature of the State.
4. His salary and other service conditions though determined by the Parliament cannot be varied to his disadvantage
after appointment
5. His administrative powers and the conditions of service of persons serving in the Indian Audit and Accounts
Department shall be prescribed by the President only after consulting him.
6. The administrative expenses of the office of CAG, including all salaries, allowances and pensions of persons serving in
that office are charged upon the Consolidated Fund of India and are not subject to the vote of Parliament.
2.4.2 Duties
• He audits the accounts related to all expenditure from the Consolidated Fund of India, Consolidated Fund of
each state and UT having a legislative assembly
• He audits all expenditure from the Contingency Fund of India and the Public Account of India as well as the
Contingency Fund and Public Account of each state
• He audits all trading, manufacturing, profit and loss accounts, balance sheets and other subsidiary accounts kept
by any department of the Central Government and the state governments.
• He audits the receipts and expenditure of all bodies and authorities substantially financed from the Central or State
revenues; government companies; other corporations and bodies, when so required by related laws
2.4.3 Functions
• He audits all transactions of the Central and state governments related to debt, sinking funds, deposits,
advances, suspense accounts and remittance business
• He audits the accounts of any other authority when requested by the President or Governor e.g. Local bodies
• He advises the President with regard to prescription of the form in which the accounts of the Centre and states
shall be kept
• He submits his audit reports relating to the accounts of the Centre to the President, who shall, in turn, place them
before both the houses of Parliament
• He submits his audit reports relating to the accounts of a State to the Governor, who shall, in turn, place them
before the state legislature
• He ascertains and certifies the net proceeds of any tax or duty and his certificate is final on the matter
• He acts as a guide, friend and philosopher of the Public Accounts Committee of the Parliament
• He compiles and maintains the accounts of state governments. In 1976, he was relieved of his responsibilities with
regard to the compilation and maintenance of accounts of the Central government due to separation of accounts
from audit
• He submits 3 audit reports to the President- audit report on appropriation accounts, audit report on finance
accounts and audit report on public undertakings
In light of the above limitations and changes in the Indian polity such as increasing role of civil society and NGOs,
liberalisation of the economy, PPP mode of investments the DPC Act, 1971 must be reviewed to bring in greater
accountability and transparency in every sphere that touches public life. CAG’s work should go beyond the question of
whether government funds are being spent appropriately to ask whether programs and policies are meeting their objectives
and the needs of society
i. Regulatory Audit: It is an audit to ascertain whether the moneys spent were authorised for the purpose for which they
were spent and also that the expenditure incurred was in conformity with the laws, rules and regulations
ii. Supplementary Audit: CAG takes up supplementary audits in PSUs, even after the commercial audits are done by the
auditors appointed by the CAG, for detection of leakages.
iii. Propriety Audit: It focuses on whether the expenditure made is in public interest or not i.e. it moves beyond mere
scrutiny of expenditure to question its wisdom and economy in order to identify cases of improper expenditure and waste
of public money
iv. Efficiency Audit: Efficiency audit as the name suggests answers the question whether the money invested yields
optimum results. The main purpose of the efficiency audit is to ensure that the investment is prioritized and channelled into
its most profitable utilization
v. Performance Audit: Performance audit answers whether the government programmes such as NREGA have achieved
the desired objectives at the lowest cost and given the intended benefits. It generally does not get into the merits-demerits
of a particular policy/scheme rather looks into the effectiveness with which the scheme is implemented and any
deficiencies thereof
vi. Environmental Audit: This is a relatively new area of concern for the CAG keeping in mind the challenges facing
India with respect to conservation and management of the environment. More than 100 audits on environmental issues like
bio-diversity, pollution of rivers, waste management have been conducted by the CAG to identify critical issues and
suggest possible solutions by involving all stakeholders
i. Mode of Appointment
• The present selection process for the CAG is entirely internal to the Government machinery; no one outside
has any knowledge of what criteria are applied, how names are shortlisted and how a final selection is made.
Thus presently there is a lack of clarity on the criterion, the definition of field of choice, the procedures for
the selection of this high constitutional functionary. In most of the other countries there is no scope for the
head of the Supreme Audit Institution to be chosen at the discretion of the Government. It is desirable that
India adopts the international practice of appointing head of Supreme Audit Institution to be independent of
the discriminatory power of the Executive.
• Another related issue is that of the appointment of IAS officers as the CAG. In the last 48 years since 1966
only one IAAS officer has been chosen while all other postings went to senior civil servants. From the
viewpoint of IAAS this looks like the systematic exclusion of that service and the virtual absorption of the
post of CAG in the IAS cadre. This perception has had a demoralising effect on the IAAS cadre. Whether
that feeling is right or wrong, it exists; and it is bound to have some effect on the commitment, zeal and
courage with which the audit function is performed. The answer to it is not to exclude the IAS, nor to reserve
the post exclusively for the IAAS, but to ensure that the appointment processes are such as to leave no room
at all for a sense of unfairness or suspicions of impropriety; and that the selected person, from wherever he or
she be drawn, is of such unquestionable suitability as to command respect both within and outside the audit
department. The field of choice should certainly be wide, and should include the IAAS, other central accounts
services (civil accounts, railway accounts and defence accounts), the IAS, and a limited number of accounts,
finance and management experts from outside the government.
• ICAI (Institute of Chartered Accountants in India) Code of Ethics states that an auditor’s independence has
two aspects- independence in fact and independence in appearance. The appointment of former secretaries as
CAG may compromise the independence of this institution because of apparent/perceived conflict of
interest.
Recent Example:
There are 2 PILs have been filed in the SC against the appointment of former defence secretary Shashi Kant
Sharma as the new CAG. Before being appointed the CAG, Mr. Sharma had served in key positions in the defence
ministry that involved decision making powers over purchases including the Augusta Westland Chopper deal and the
Tatra trucks deal. His appointment is thus being questioned in the context of conflict of interest and also that it goes
against the code of ethics of auditors.
• In the recent past CAG’s reports on 2G, Coal blocks allocation, Delhi Airport PPP have made the Government
very uncomfortable with the audit findings. In order to defend its position, some members of the ruling party
have raised questions about CAG’s jurisdiction and observed that he has exceeded his mandate. What is the
veracity of such criticism? The CAG’s role should be viewed in the context of our constitutional scheme u-
nder which the executive is accountable to Parliament. CAG is an essential instrument for enforcing the
accountability mechanism as the CAG’s reports on government’s stewardship of public finance are required
to be placed in Parliament and state legislatures under Article 151 of the Constitution. To enable him to
discharge this responsibility, without fear or favour, he has been given an independent status under Article
148 analogous to that of a Supreme Court judge.
• The word ‘audit’ has not been defined in either the Constitution or in the CAG Act, 1971. We have so far
been going by 150 years of history, tradition, existing provisions and international practice. The CAG has not
formulated his own policy in the above reports and has only gone by policy prescriptions recommended
internally at various levels within the government. It is within the mandate of CAG to comment on a policy in
cases wherein-
• The financial implications of a policy were not gone into at all before the decision was made
• The assessment of financial implications was quite clearly wrong
• The numbers were correct but the reasoning behind the decision was questionable
Further, the CAG is bound by the oath of office to uphold the Constitution of India and thus is bound to comment
on policy matters that seem unconstitutional. If the government were to formulate a scheme or policy that
selectively confers benefits from public funds on an individual or a group to the exclusion of others, it is the CAG’s
duty to point this out. Thus the CAG was well within his mandate to comment on the above policy decisions.
Another criticism has been of the Notional and Presumptive loss figures as claimed in the reports. There is a genuine
dilemma here. If the reports were to make a bland statement that an alternative procedure would have yielded more
revenue to the government or would have meant less discretionary patronage, it would give no indication of the
financial dimensions of the decision or the importance of the matter. Putting a number on it brings this home. On the
other hand, when a number is mentioned, the discussion tends to focus on it and not on the issues involved. There is no
easy way out of this dilemma. All that one can say is that the ‘notional’ number should e carefully estimated, making
the assumptions and methodology clear. This is what the CAG has done. He has not claimed that his figures are
definitive. The assumptions can be questioned, the methodology can be questioned, the resulting number can be
debated; what cannot be questioned is the procedural or substantive lapse to which the figure points.
The Constituent Assembly, after independence, saw the need for giving a secure and autonomous status to Public Service
Commissions both at Federal and Provincial levels for ensuring unbiased recruitment to Civil Services as also for
protection of service interests.
With the promulgation of the new Constitution for independent India on 26th January, 1950, the Federal Public Service
Commission was accorded a constitutional status as an autonomous entity and given the title – Union Public Service
Commission (UPSC).
3.2 Composition
UPSC has been established under Article 315 of the Constitution of India. The Commission consists of a Chairman and ten
Members appointed by the President of India. The Constitution, without specifying the strength of the commission has left
the matter to the discretion of the President.
Further, no qualifications are prescribed for the Commission’s membership except that one-half of the members should be
such persons who have held office for at least 10 years either under the Government of India or under the
government of a state.
The Constitution has authorized the President to determine the conditions of service of the Chairman and other Members of
the Commission. Accordingly, the terms and conditions of service of Chairman and Members of the Commission are
governed by the Union Public Service Commission (Members) Regulations, 1969.
The Commission is serviced by a Secretariat headed by a Secretary. The expenses of the Union or a State Public Service
Commission, including any salaries, allowances and pensions payable to or in respect of the members or staff of the
Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the Consolidated Fund of the
State.
The Chairman and Members of the Commission hold office for a term of 6 years or until they attain the age of 65 years,
whichever is earlier. However, they can relinquish their offices at any time by addressing their resignations to the
President. The President can appoint one of the members of the UPSC as an acting chairman in the following
circumstances when the office of the chairman falls vacant or when the chairman is unable to perform his functions due to
absence or some other reason
3.9 Exemptions:
In order to exempt some posts which for reasons of National Security or some other reasons may not be required to be
referred to the Commission for their advice, the Union Public Service Commission (Exemption from Consultations)
Regulations were issued on September 1, 1958, under Article 320(3)(a) and (b) of the Constitution. These Regulations are
amended or revised as and when the need arises. The following matters are kept outside the purview of UPSC:
a) While making reservations of appointments or posts in favour of any backward class of citizens
b) While taking into consideration the claims of scheduled castes and scheduled tribes in making appointments to
services and posts
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c) With regard to the selections for chairmanship or membership of commissions or tribunals, posts of the highest
diplomatic nature and a bulk of group C and group D services
d) With regard to the selection for temporary appointments for not more than a year
The President can exclude posts, services and matters from the purview of the UPSC. The President can also, in respect to
the all-India services and Central services and posts may make regulations specifying the matters in which it shall not be
necessary for UPSC to be consulted. All such regulations shall be laid before the Parliament which can amend or repeal
them.
• 1990: 65th Constitutional Amendment provides for the establishment of a high-level multi-member National
Commission for SCs and STs in place of the single Special Officer for SCs and STs.
• 2003: 89th Constitutional Amendment bifurcated the combined National Commission for SCs and STs into 2
separate bodies, namely the National Commission for SCs (under Article 338) and the National Commission for
STs (under Article 338A)
• Art. 350:- Right to conserve distinct Language, Script or Culture & instruction in Mother Tongue.
• Art. 23:- Prohibition of traffic in human beings and beggar and other similar form of forced labour;
• Art. 24:- Forbidding Child Labour.
The Constitution does not specify the qualifications, tenure, salaries and allowances, service conditions and procedure for
removal of the Special Officer for linguistic minorities. In pursuance of the provision of Article 350-B, the office of the
Special Officer for Linguistic Minorities was created in 1957. He is designated as the Commissioner for Linguistic
Minorities.
The Commissioner has his headquarters at Allahabad and there are three regional offices at Belgaum, Chennai and
Kolkata which are each headed by an Assistant Commissioner. At the centre, the commissioner falls under the Ministry of
Minority Affairs. Hence he submits the annual reports or other reports to the President through the Union Minority Affairs
Minister.
6.2.1 The president has assigned the following duties to the AG:
1. To appear on behalf of the GoI in all cases in the Supreme Court in which the GoI is concerned
2. To represent the GoI in any reference made by the president to the Supreme Court under Article 143 of the
Constitution
3. To appear in any high court in any case in which the GoI is concerned
6.4 Limitations
The AG does not have any executive authority as these functions are performed by the Law Minister of India; further,
following limitations are placed on the AG in order to avoid any complication and conflict of duty:
1. He should not advise or hold a brief against the Government of India
2. He should not advise or hold a brief in cases in which he is called upon to advise or appear for the GoI
3. He should not defend accused persons in criminal prosecutions without the permission of the GoI
4. He should not accept appointment as a director in any company or corporation without the permission of GoI
8. Finance Commission
The Finance Commission is constituted by the President as a quasi-judicial body under article 280 of the Constitution,
mainly to give its recommendations on distribution of tax revenues between the Union and the States and amongst the
States themselves. Two distinctive features of the Commission’s work involve redressing the vertical imbalances between
the taxation powers and expenditure responsibilities of the centre and the States respectively and equalization of all public
services across the States.
8.1 Composition
• The Finance Commission is constituted by the President every fifth year or at such earlier time as he considers
necessary. It consists of a chairman and four other members. They hold office for such period as specified by the
president in his order and are eligible for reappointment.
• The Constitution authorises the Parliament to determine the qualifications of members of the commission and the
manner in which they should be selected. Accordingly, the Parliament has specified the qualifications of the
chairman and other members of the commission. The Chairman should be a person having experience in public
affairs; and the four other members should be selected from amongst the following:
1. A judge of high court or one qualified to be appointed as one
2. A person who has specialised knowledge of finance and accounts of the government
3. A person who has wide experience in financial matters and in administration
4. A person who has special knowledge of economics.
8.2 Functions
It is the duty of the Commission to make recommendations to the President as to:
• The distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided
between them and the allocation between the States of the respective shares of such proceeds;
• The principles which should govern the grants-in-aid of the revenues of the States out of the Consolidated Fund of
India;
• The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in
the State on the basis of the recommendations made by the Finance Commission of the State;
• The measures needed to augment the Consolidated Fund of a State to supplement the resources of the
Municipalities in the State on the basis of the recommendations made by the Finance Commission of the State;
• Any other matter referred to the Commission by the President in the interests of sound finance.
• The Commission determines its procedure and has such powers in the performance of its functions as Parliament may
by law confer on them.
8.3 Recommendations of FC
The recommendations are presented to the President in the FC report and the President causes the same to be tabled in the
Parliament. They are not binding on the Government but are conventionally accepted by the Government.
b. Losses in the power sector: Subsidy for the power sector is the largest component of state government subsidies. The
power sector in most states is beset with high losses, and inefficient infrastructure, resulting in huge losses.
Recommendation: Losses in the power sector are expected to be a major drag on the finances of State Governments,
and therefore, the problems confronting this sector need to be addressed in a time-bound manner
c. Reduction of centrally sponsored schemes: Initiatives should be taken to reduce the number of Centrally Sponsored
Schemes and to restore the predominance of fund-transfers based on Planning Commission recommendations
• The Empowered Committee of State Finance Ministers (EC) should be given statutory status. The compensation
should be disbursed in quarterly instalments on the basis of recommendations by a three-member Compensation
Committee. The Compensation Committee should comprise of the Secretary, Department of Revenue of the central
government, Secretary to the EC, and an eminent person with experience in public finance
State-specific grants recommended for a state should be released upon compliance. Borrowing limits for states to
be worked out by Finance Ministry using the fiscal reform path, thus acting as an enforcement mechanism for
fiscal correction by states.
• The Finance Commission assesses the non-plan requirements of the State Governments and recommends a share
in the net yield from the Central and Grants-in-aid (presently 32.5%). The divisible sum of Central taxes is
distributed inter se among the states based on independent criteria. In addition, the Finance Commission
recommends the principles governing non-plan grants and loans to states. Examples of grants would include funds
for disaster relief, maintenance of roads and other state-specific requests.
• Among states, the distribution of tax revenue and grants is determined through a formula accounting for
population (25%), area (10%), fiscal capacity (47.5%) and fiscal discipline (17.5%). Unlike the Planning
Commission, the Finance Commission does not distinguish between special and non-special category states in its
allocation.
• The most significant centre-state transfer is the distribution of central tax revenues among states. The Finance
Commission decides the actual distribution and the current Finance Commission have set aside 32.5% of central
tax revenue for states. In 2011-12, this amounted to Rs 2.5 lakh crore (57% of total transfers), making it the
largest transfer from the centre to states.
• The Planning Commission allocates funds to states through central assistance for state plans. Central assistance
can be broadly split into three components: Normal Central Assistance (NCA), Additional Central Assistance
(ACA) and Special Central Assistance.
• NCA, the main assistance for state plans, is split to favour special category states: the 11 states get 30% of the
total assistance while the other states share the remaining 70%. The nature of the assistance also varies for special
category states; NCA is split into 90% grants and 10% loans for special category states, while the ratio between
grants and loans is 30:70 for other states.
• The Planning Commission also allocates funds for ACA (assistance for externally aided projects and other
specific project) and funds for Centrally Sponsored Schemes (CSS). State-wise allocation of both ACA and CSS
funds are prescribed by the centre.
• For allocation among special category states, there are no explicit criteria for distribution and funds are allocated
on the basis of the state’s plan size and previous plan expenditures. Allocation between non special category states
is determined by the Gadgil Mukherjee formula which gives weight to population (60%), per capita income
(25%), fiscal performance (7.5%) and special problems (7.5%).
• As a proportion of total centre-state transfers NCA typically accounts for a relatively small portion (around 5% of
total transfers in 2011-12). However, Planning Commission allocations can be important for states, especially for
the functioning of certain schemes.
a. Role of SFC : One major contribution is the template prepared by 13th FC with the help of an expert committee to
help future SFCs in preparing their reports. Although no SFC with a mind of its own will mechanically follow the
template, this is a big step towards streamlining SFC reports in the future.
b. Amend Article 280: The 13th FC has recommended to amend Article 280(3)(bb) and (c) of the Constitution so that the
words “on the basis of the recommendations of the finance commission of the State” are changed to “after taking into
consideration the recommendations of the finance commission of the State”. This recommendation, already approved
by several expert bodies fully appreciates the spirit of the clause that envisages an organic link in Indian fiscal
federalism.
c. Parallel Agencies and bodies: The 13th FC rightly points out that parallel agencies and bodies are “emasculating
local governments both financially and operationally”. Having constitutionally assigned a certain functional domain to
local governments, which include “planning for economic development and social justice” and preparing a draft
district development plan, it is for the union and state governments to help this process of decentralised planning and
governance with funds, functionaries and technical support.
• Article 280 (3) (bb) & (c) of the Constitution should be amended to make the recommendations of the State Finance
Commissions less binding on state governments.
• Article 243(I) of the Constitution should be amended to empower states governments to constitute and direct state
Finance Commissions to give their report before the National Finance Commission finalises its report.
• State governments should strengthen their local audit departments through capacity building.
• Bodies similar to the SFC should be set up in states which are not covered by Part IX of the Constitution (Panchayats).
• Local Bodies should be associated with city planning functions wherever other development authorities are mandated
for this function.
• State governments will be eligible for the general performance grant and the special areas performance grant only if
they comply with the prescribed stipulations.
VISIONIAS ™
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QUASI-JUDICIAL BODIES
Revised Value Addition Material
Content:
Quasi-Judicial Bodies in India
Emergence of Quasi-Judicial Bodies in India
Quasi-judicial Action vs Administrative Action
Examples of Quasi Judicial Bodies
Tribunals
Evolution of Tribunals
Judicial Review of Cases Handled by Tribunals
Categories of Tribunals in India
National Consumer Disputes Redressal Commission
Lok Adalats
Origin of Lok Adalats
Permanent Lok Adalats
Jurisdiction of Lok Adalats
Powers of Lok Adalats
Advantages of Lok Adalats
National Human Rights Commission
Composition
Functions
Appointment
Removal of a Member of the Commission
Working of NHRC
Strength of NHRC
Weaknesses of the Commission
Central Vigilance Commission
Composition
Removal
Functions
Working of CVC
Central Bureau of Investigation
Composition of CBI
Organization of CBI
Functions of CBI
CBI as ‘Caged Parrot’ and steps to make it free
Student Notes:
A quasi-judicial body has also been defined as “an organ of government, other than a court or
legislature, which affects the rights of private parties through adjudication or rule-making.
Thus, a quasi-judicial body is one, which exercises a discretion that is essentially judicial in
character, but is not a tribunal within the judicial branch of the government and is not a court
exercising judicial power in the constitutional sense.
In A.K. Kraipak vs. Union of India, the Court was of the view that in order to determine whether
the action of the administrative authority is quasi-judicial or administrative, one has to see the
nature of power conferred, to whom power is given, the framework within which power is
conferred and the consequences.
Thus broadly speaking, acts, which are required to be done on the subjective satisfaction of the
administrative authority, are called ‘administrative’ acts, while acts, which are required to be
done on objective satisfaction of the administrative authority, can be termed as quasi-judicial
acts.
Administrative decisions, which are founded on pre-determined standards, are called objective
decisions whereas decisions which involve a choice, as there is no fixed standard to be applied
are so called subjective decisions. The former is quasi-judicial decision, while the latter is
administrative decision. In case of administrative decision there is no legal obligation, upon the
person charged with the duty of reaching the decision, to consider and weigh submissions and
arguments or to collate any evidence. The grounds upon which he acts, and the means which
he takes to inform himself before acting are left entirely to his discretion.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Student Notes:
However, the Supreme Court observed, “It is well settled that the old distinction between a
judicial act and administrative act has withered away and we have been liberated from the
pestilent incantation of administrative action.”
Tribunals
There are a large number of laws, which charge the Executive with adjudicatory functions, and
the authorities so charged are, in the strict scene, administrative tribunals. Administrative
tribunals are agencies created by specific enactments. Administrative adjudication is a term
synonymously used with administrative decision-making.
• The tribunal consists of members and heads that may not possess any background of
law.
• Tribunals do not rely on uniform precedence and hence may lead to arbitrary and
inconsistent decisions.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Student Notes:
Evolution of Tribunals
The growth of Administrative Tribunals, both in developed and developing countries, has been
a significant phenomenon of the twentieth century. In India also, innumerable Tribunals have
been set up from time to time, both at the center and the states, covering various areas of
activities like trade, industry, banking, taxation etc. The question of establishment of
Administrative Tribunals to provide speedy and inexpensive relief to the government
employees, relating to grievances on recruitment and other conditions of service, had been
under the consideration of Government of India for a long time. Due to their heavy
preoccupation, long pending and backlog of cases, costs involved and time factors, Judicial
Courts could not offer the much-needed remedy to government servants, in their disputes with
the government. A need arose to set up an institution, which would help in dispensing prompt
relief to harassed employees, who perceive a sense of injustice and lack of fair play in dealing
with their service grievances. This would motivate the employees better and raise their morale,
which in turn would increase their productivity.
The First ARC and a Committee under J.C. Shah recommended the establishment of an
independent tribunal to exclusively deal with service matters. The same was validated by the
Supreme Court in 1980.
The Constitution (through 42ndAmendment Act, Article 323-A) empowered the Parliament to
provide for adjudication or trial by Administrative Tribunals of disputes and complaints with
respect to recruitment and constitution of service of persons appointed to public service and
posts in connection with the affairs of the union or of any state or local or other authority
within the territory of India or under the control of the government or any corporation, owned
or controlled by the government.
In pursuance of the provisions of Article 323-A of the Constitution, the Administrative Tribunals
Bill was introduced in Lok Sabha on 29thJanuary 1985 and received the assent of the President
of India on 27th February 1985.
In S. P. Sampath Kumar case, the Supreme Court directed the carrying out of certain measures
with a view to ensuring the functioning of the Administrative Tribunals along constitutionally
sound principles. In an amendment the jurisdiction of the Supreme Court under article 32 was
restored. Constitutional validity of the Act was finally upheld in S. P. Sampath Kumar case
subject to certain amendments relating to the form and content of the Administrative Tribunals.
The suggested amendments were carried out by another amending Act. Thus the
Administrative Tribunals became an effective and real substitute for the High Courts.
However, in 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar held that
clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower
Parliament to exclude the jurisdiction of the High Courts and the Supreme Court under articles
226/227 and 32 of the Constitution, are unconstitutional. The Court held that the jurisdiction
conferred upon the High Courts under articles 226/227 and upon the Supreme Court under
article 32 of the Constitution is part of the inviolable basic structure of our Constitution.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Student Notes:
All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench of
the High Court within whose jurisdiction the concerned Tribunal falls. As a result, orders of the
Administrative Tribunals are being routinely appealed against in High Courts, whereas this was
not the position prior to the L. Chandra Kumar’s case. On 18th March 2006, the Administrative
Tribunals (Amendment) Bill, 2006 was introduced in Rajya Sabha to amend the Act by
incorporating therein, inter alia, provisions empowering the Central Government to abolish
Administrative Tribunals, and for appeal to High Court to bring the Act in line with L. Chandra
Kumar. The Department-related Parliamentary Standing Committee on Personnel, Public
Grievances, Law and Justice in its 17th Report said that the appeal to High Court is unnecessary,
and if a statutory appeal is to be provided it should lie to the Supreme Court only. The Law
Commission also took up the topic suo-moto and agreed with the opinion put forward by the
Parliamentary Standing Committee.
The Act envisages a three-tier quasi-judicial machinery at the National, State and District
levels:
i. National Consumer Disputes Redressal Commission - known as “National Commission”;
ii. State Consumer Disputes Redressal Commission known as “State Commission”; and
iii. District Consumer Disputes Redressal Forum - known as “District Forum”.
The Act also provides for establishment of Consumer Protection Councils at the Union, State
and District levels, whose main objectives are to promote and protect the rights of consumers.
Each District Forum is headed by a person who is, has been or is eligible to be appointed as a
District Judge and each State Commission is headed by a person who is or has been a Judge of a
High Court.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Student Notes:
The provisions of this Act cover ‘goods’ as well as ‘services’. The goods are those, which are
manufactured or produced and sold to consumers through wholesalers and retailers. The
services are in the nature of transport, telephone, electricity, housing, banking, insurance,
medical treatment, etc.
A written complaint can be filed before the District Consumer Forum for pecuniary value of up
to Rs. twenty lakh, State Commission for value upto Rs. one crore and the National Commission
for value above Rs. one crore, in respect of defects in goods or deficiency in service. The service
can be of any description and the illustrations given above are only indicative. However, no
complaint can be filed for alleged deficiency in any service that is rendered free of charge or
under a contract of personal service.
The remedy under the Consumer Protection Act is an alternative in addition to that already
available to the aggrieved persons/consumers by way of civil suit. In the
complaint/appeal/petition submitted under the Act, a consumer is not required to pay any
court fee, but only a nominal fee.
Consumer Fora proceedings are summary in nature. The endeavor is made to grant relief to the
aggrieved consumer as quickly as possible, keeping in mind the provisions of the Act which lay
down time schedule for disposal of cases.
If a consumer is not satisfied by the decision of a District Forum, he can appeal to the State
Commission. Against the order of the State Commission, a consumer can come to the National
Commission.
In order to help achieve the objects of the Consumer Protection Act, the National Commission
has also been conferred with the power of administrative control over all the State
Commissions by calling for periodical returns regarding the institution, disposal and pendency
of cases.
Lok Adalats
The concept of Lok Adalat (People’s Court) is an innovative Indian contribution to the world
jurisprudence. The introduction of Lok Adalats added a new chapter to the justice dispensation
system of this country and succeeded in providing a supplementary forum to the victims for
satisfactory settlement of their disputes. This system is based on Gandhian principles. It is one
of the components of ADR (Alternative Dispute Resolution) systems. In ancient times, the
disputes were referred to “Panchayats”, which were established at village level. Panchayats
resolved the disputes through arbitration. It has proved to be a very effective alternative to
litigation. This concept of settlement of disputes through mediation, negotiation or arbitration
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Student Notes:
is conceptualized and institutionalized in the philosophy of Lok Adalat. It involves people who
are directly or indirectly affected by dispute resolution.
The evolution of this movement was a part of the strategy to relieve heavy burden on the
Courts with pending cases and to give relief to the litigants. The first Lok Adalat was held on
March 14, 1982 at Junagarh in Gujarat. Maharashtra commenced the Lok Nyayalaya in 1984.
The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats,
pursuant to the constitutional mandate in Article 39-A of the Constitution of India. It contains
various provisions for settlement of disputes through Lok Adalat. This Act mandates
constitution of legal services authorities to provide free and competent legal services to the
weaker sections of the society and to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities. It also mandates organization
of Lok Adalats to secure that the operation of the legal system promotes justice on the basis of
equal opportunity. When statutory recognition had been given to Lok Adalat, it was specifically
provided that the award passed by the Lok Adalat formulating the terms of compromise will
have the force of decree of a court, which can be executed as a civil court decree. The evolution
of movement called Lok Adalat was a part of the strategy to relieve heavy burden on the Courts
with pending cases and to give relief to the litigants who were in a queue to get justice. It
contains various provisions for settlement of disputes through Lok Adalat.
The parties are not allowed to be represented by the lawyers and encouraged to interact with
judge who helps in arriving at amicable settlement. No fee is paid by the parties. Strict rule of
Civil Procedural Court and evidence is not applied. Decision is by informal sitting and binding on
the parties and no appeal lies against the order of the Lok Adalat.
In 2002, the Parliament brought about certain amendments to the Legal Services Authorities
Act, 1987 to institutionalize the Lok Adalats by making them a permanent body to settle the
disputes related to public utility services. The Central or State Authorities may, by notification,
establish Permanent Lok Adalats at any Permanent Lok Adalats, for determining issues in
connection to Public Utility Services.
• Transport service
• Postal, telegraph or telephone services
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Student Notes:
Permanent Lok Adalats have the same powers that are vested in the Lok Adalats.
A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement
between the parties to a dispute in respect of:
The Lok Adalat can compromise and settle even criminal cases, which are compoundable under
the relevant laws.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Student Notes:
3. All proceedings before a Lok Adalat shall be deemed to be judicial proceedings within
the meaning of Sections 193, 219 and 228 of IPC.
4. Every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec 195 and
Chapter XXVI of Cr.P.C.
National Human Rights Commission is designed to protect human rights, defined as “rights
relating to life, liberty, equality and dignity of individual guaranteed by Constitution or
embodied in International Covenant and which are enforceable by Courts in India”.
Composition
• NHRC consists of a Chairperson and four members, all of them being full-time
members. The Chairperson should be a retired Chief Justice of India and members
should be serving or retired judges of the Supreme Court, a serving or retired Chief
Justice of a High Court and two persons having knowledge or practical experience with
respect to human rights.
• Apart from these full-time members, the Commission also has four ex-officio members,
the Chairpersons of National Commission for Minorities, National Commission for SCs &
STs and National Commission for Women.
• Multi-membership is intended to reinforce independence and impartiality of the
Commission.
• The Chairperson and members hold office for a term of five years or until they attain
the age of 70 years, whichever is earlier. After their tenure, the Chairperson and
members are not eligible for further employment under the Central or a State
government.
Functions
• Proactively or reactively inquire into violations of human rights or negligence in the
prevention of such violation by a public servant
• By leave of the court, to intervene in court proceeding relating to human rights
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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• Visit any jail or other institution under the control of the State Government, where
persons are detained or lodged for purposes of treatment, reformation or protection,
for study of the living conditions of the inmates and make recommendations
• Review the Constitutional or legal safeguards in force for the protection of human
rights and recommend measures for their effective implementation
• Review the factors, including acts of terrorism that inhibit the enjoyment of human
rights and recommend appropriate remedial measures
• Study treaties and other international instruments on human rights and make
recommendations for their effective implementation
• Undertake and promote research in the field of human rights
• Engage in human rights education among various sections of society and promote
awareness of the safeguards available for the protection of these rights through
publications, the media, seminars and other available means
• Encourage the efforts of NGOs and institutions working in the field of human rights
• Such other function as it may consider it necessary for the protection of human rights.
Appointment
The Chairperson and members of the NHRC are appointed by the President of India, on the
recommendation of a Committee consisting of:
• Is adjudged an insolvent; or
• Engages during his term of office in any paid employment outside the duties of his
office; or
• Is unfit to continue in office by reason of infirmity of mind or body; or
• Is of unsound mind and stands so declared by a competent court; or
• Is convicted and sentenced to imprisonment for an offence, which in the opinion of the
President involves moral turpitude.
Additionally, the Chairperson or any other Member of the Commission shall only be removed
from his office by order of the President on the ground of proved misbehavior or incapacity.
However, in these cases, the President has to refer the matter to the Supreme Court for an
inquiry. If the Supreme Court, after the inquiry, upholds the cause of removal and advises so,
then the President can remove the Chairman or a member.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Working of NHRC
The Commission has all powers of a Civil Court. It has its own investigating staff for investigation
into complaints of Human Rights violations. It is open to it to utilize services of any officer or
investigation agency of the Central Government or any State Government. The Commission
while inquiring into complaints of violations of human rights may call for information or report
from the Central Government or any State Government, or any other authority or organization
subordinate thereto within such time as may be specified by it.
The Commission is not empowered to inquire into any matter after the expiry of one year from
the date on which the act constituting violation of human rights is alleged to have been
committed. In other words, it can look into a matter within one year of its occurrence.
The Commission may take any of following steps upon completion of an enquiry:
Strength of NHRC
1. The selection procedure of the members of NHRC is the main factor of its strength. The
composition of the Selection Committee is such that it involves members of ruling as
well as opposition party and both the Houses of Parliament. Also, the composition of
NHRC is such that it involves Legislative, Executive, Judiciary, academicians and NGOs.
This gives the Commission a broad vision to deal with the issues of Human Rights.
2. Financial autonomy, though limited, has provided NHRC independence of Central
Government. The Commission is free to make its own budget and spend it according to
its own planning. The draft of the proposed budget is placed before both the Houses of
Parliament and after the approval of the budget, the Government, without making any
amendment, has to provide finances to the Commission.
3. The Commission has the power to conduct suo-moto inquiry into the complaints of
Human Rights violations.
4. Easy accessibility to the Commission has made it one of the most popular organizations.
Anyone can approach NHRC through telephone, letter, application, mobile phone and
the Internet. All the documents, reports, newsletters, speeches, etc. of the Commission
are also available on this website. The status of the complaint too can be known
through its website. The popularity and trust on NHRC is quite evident from the fact
that while it had registered only 496 complaints in 1993-94, in 2004-05 the total
number of cases were 74,4019.
5. NHRC has advised the government a number of times on the issues of Human Rights.
Be it the cases of custodial deaths or suicide by the farmers or health issues or POTA,
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
child marriage, trafficking of women and children etc., the government has been taking
suggestions from NHRC.
6. NHRC, in a true democratic fashion, has worked immensely to create awareness among
public on Human Rights issues through seminars, workshops, lectures, literature, NGOs’
participation, universities’ collaborations, etc.
7. The Commission has extended its sphere from time to time. Support for right to
information, health care issues, disables’ rights, HIV/AIDS patients’ rights etc. are some
of the issues where NHRC has worked successfully.
In 2004, the Government of India authorized the CVC as the “Designated Agency” to receive
written complaints for disclosure on any allegation of corruption or misuse of office and
recommend appropriate action. The CVC is conceived to be the apex vigilance institution, free
of control from any executive authority, monitoring all vigilance activity under the Central
Government and advising various authorities in Central Government organizations in planning,
executing, reviewing and reforming their vigilance work.
Composition
The CVC is composed of a Chairperson (Central Vigilance Commissioner) and not more than two
members. The President appoints them upon the recommendation of a committee comprising
of:
They hold office for a term of four years or until they attain the age of sixty-five years,
whichever is earlier. They are not eligible for further employment under the Central or a State
Government upon expiry of their term.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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The appointment of P.J. Thomas as CVC in 2011 was quashed by the Supreme Court since he
was an accused in Kerala Palmolein case under Prevention of Corruption Act.
Removal
The President can remove any member from office under the following circumstances:
1. If he is adjudged insolvent; or
2. If he has been convicted of an offence which (in the opinion of the Central
Government) involves a moral turpitude; or
3. If he engages, during his term of office, in any paid employment outside the duties of
his office; or
4. If he is (in the opinion of the President), unfit to continue in office by reason of infirmity
of mind or body; or
5. If he has acquired such financial or other interest as is likely to affect prejudicially his
official functions.
In addition, the President can remove any member on the grounds of proved misbehavior or
incapacity. However, in this case, the President has to refer the matter to the Supreme Court for
an enquiry. If, after the enquiry, the Supreme Court upholds the cause of removal and advises
so, the President can remove him. He is deemed to be guilty of misbehavior if:
Functions
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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• The Committee concerned with the appointment of the Director of Enforcement is also
empowered to recommend, after consultation with the Director of Enforcement,
appointment of officers to the posts of the level of Deputy Director and above in the
Directorate of Enforcement.
Working of CVC
The CVC conducts its proceedings at New Delhi. It has the powers of a Civil Court and is
empowered to regulate its own procedure. It may call for information or report from the
Central Government or its authorities so as to enable it to exercise general supervision over the
vigilance and anti-corruption work.
The CVC, after receiving the report of the inquiry undertaken by an agency, advises the Central
Government or its authorities upon further course of action. The Central Government or its
authorities shall consider such advise and take appropriate action. If it does not agree with the
advise of the CVC, it shall communicate the reasons for the same to the CVC.
Annual report of performance of CVC has to be presented to the President. The President
places this report before each House of the Parliament.
All Ministries/Departments in the Union Government have a Chief Vigilance Officer (CVO) who
heads the Vigilance Division of the organization concerned, assisting and advising the Secretary
or Head of Office in all matters pertaining to vigilance. He also provides a link between his
organization and the Central Vigilance Commission on the one hand and his organization and
the Central Bureau of Investigation on the other.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
The CBI is not a statutory body. It derives its powers from the Delhi Special Police Establishment
Act, 1946.The CBI is the main investigating agency of the Central Government. It plays an
important role in the prevention of corruption and maintaining integrity in administration. It
works under the overall superintendence of Central Vigilance Commission in matters related to
the Prevention of Corruption Act, 1988.
Composition of CBI
The CBI is headed by a Director. He is assisted by a Special Director or an Additional Director.
Additionally, it has a number of joint directors, deputy inspector generals, superintendents of
police and all other usual ranks of police personnel.
The Director of CBI has been provided security of two-year tenure in office by the CVC Act, 2003
(Vineet Narain Case). The CVC Act also provides the mechanism for the selection of the Director
of CBI and other officers of the rank of SP and above in the CBI. The Director of the CBI is
appointed by the Central Government on the recommendation of a committee consisting of the
Central Vigilance Commissioner as Chairperson, the Vigilance Commissioners, the Secretary to
the Government of India in-charge of the Ministry of Home Affairs and the Secretary
(Coordination and Public Grievances) in the Cabinet Secretariat.
Organization of CBI
1. Anti-Corruption Division
2. Economic Offences Division
3. Special Crimes Division
4. Policy and International Police Cooperation Division
5. Administration Division
6. Directorate of Prosecution
7. Central Forensic Science Laboratory
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
Functions of CBI
The functions of CBI are:
The CBI is a multidisciplinary investigation agency of the Government of India and undertakes
investigation of corruption-related cases, economic offences and cases of conventional crime. It
normally confines its activities in the anti-corruption field to offences committed by the
employees of the Central Government and Union Territories and their public sector
undertakings. It takes up investigation of conventional crimes like murder, kidnapping, rape etc.,
on reference from the state governments or when directed by the Supreme Court/High Courts.
The CBI acts as the “National Central Bureau” of Interpol in India. The Interpol Wing of the CBI
coordinates requests for investigation-related activities originating from Indian law
enforcement agencies and the member countries of the Interpol.
In response to this, the Centre filed an affidavit stating following measures it will adopt to
ensure the autonomy of the CBI:
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
The Commission consists of a Chief Information Commissioner and not more than ten
Information Commissioners. They are appointed by the President upon the recommendation of
a committee comprising:
They should be people of eminence in public life with wide knowledge and experience in law,
science and technology, social service, management, journalism, mass media or administration
and governance. They should not be a Member of Parliament or Member of the Legislature of
any State or Union Territory. They should not hold any other office of profit or connected with
any political party or carrying any business or pursuing any profession.
The members of CIC hold office for a term of five years or until they attain the age of sixty-five
years, whichever is earlier. They are not eligible for reappointment. The Information
Commissioner is eligible for appointment as Chief Information Commissioner but cannot hold
office for more than a total of five years including his term as Information Commissioner.
The President can remove any member from office under the following circumstances:
1. If he is adjudged insolvent; or
2. If he has been convicted of an offence which (in the opinion of the Central
Government) involves a moral turpitude; or
3. If he engages, during his term of office, in any paid employment outside the duties of
his office; or
4. If he is (in the opinion of the President), unfit to continue in office by reason of infirmity
of mind or body; or
5. If he has acquired such financial or other interest as is likely to affect prejudicially his
official functions.
In addition, the President can remove any member on the grounds of proved misbehavior or
incapacity. However, in this case, the President has to refer the matter to the Supreme Court for
an enquiry. If, after the enquiry, Supreme Court upholds the cause of removal and advises so,
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
The State Information Commission performs similar functions with respect to offices, financial
institutions, public sector undertakings, etc. which fall under the concerned State Government.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
Planning Commission
The Planning Commission was established in March 1950 by an executive resolution of the
Government of India, (i.e. Union Cabinet) on the recommendation of the Advisory Planning
Board constituted in 1946, under the chairmanship of K C Neogi. Thus, the Planning
Commission is neither a constitutional body nor a statutory body. In other words, it is a non-
constitutional or extra-constitutional body (i.e. not created by the Constitution) and a non-
statutory body (not created by an act of Parliament). In India, it is the supreme organ of
planning for social and economic development.
Functions
The functions of the Planning Commission include the following:
The Allocation of Business Rules have assigned the following matters (in addition to the above)
to the Planning Commission:
Earlier, the National Informatics Centre was also under the Planning Commission. Later, it was
brought under the Ministry of Information Technology. The Unique Identification Authority of
India (UIDAI) has been constituted in January, 2009 as an attached office under aegis of the
Planning Commission. With the transfer of National Rainfed Area Authority (NRAA) from
Ministry of Agriculture to the Planning Commission, all matters relating to the NRAA will
henceforth be looked after by the Planning Commission. It should be noted that the Planning
Commission is only a staff agency—an advisory body and has no executive responsibility. It is
not responsible for taking and implementing decisions. This responsibility rests with the Central
and State governments.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
Composition
The following points can be noted in context of the composition (membership) of the Planning
Commission:
i. The Prime Minister of India has been the chairman of the Commission. He presides
over the meetings of the Commission.
ii. The Commission has a Deputy Chairman. He is the de facto executive head (i.e.,
full-time functional head) of the Commission. He is responsible for the formulation
and submission of the draft Five-Year Plan to the Central Cabinet. He is appointed
by the Central Cabinet for a fixed tenure and enjoys the rank of a Cabinet Minister.
Though he is not a member of Cabinet, he is invited to attend all its meeting
(without a right to vote).
iii. Some Central Ministers are appointed as part-time members of the Commission. In
any case, the Finance Minister and planning minister are the ex-officio (by virtue of)
members of the Commission.
iv. The Commission has four to seven full-time expert members. They enjoy the rank
of a Minister of State.
v. The Commission has a Member-Secretary. He is usually a senior member of IAS.
The state governments are not represented in the Commission in any way. Thus, the Planning
Commission is wholly a centre-constituted body.
Internal Organization
1. Technical Divisions
2. Housekeeping Branches
3. Programme Advisors
Technical Divisions: The technical divisions are the major functional units of Planning
Commission. They are mainly concerned with plan formulation, plan monitoring and plan
evaluation. These fall under two broad categories, that is, general divisions (concerned with
aspects of the entire economy) and subject divisions (concerned with specified fields of
development).
Housekeeping Branches: The Planning Commission has the following housekeeping branches:
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
the Planning Commission. The PEO is headed by a Director/Chief who is assisted by Joint
Directors, Deputy Directors, Assistant Directors and other staff. The PEO has seven regional
offices at Chennai, Hyderabad, Mumbai, Lucknow, Chandigarh, Jaipur and Kolkata. Each regional
evaluation office of PEO is headed by a Deputy Director. The PEO undertakes an assessment of
the implementation of development programmes and plans as contained in Five-Year Plans to
provide, from time to time, feedback to the Planning Commission and executive agencies. It
also provides technical advice to state evaluation organizations.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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A quasi judicial body is an organization or individual on which powers resembling to that of court of law of
judge have been conferred in order to adjudicate and decided upon a situation and impose penalty upon the guilty
or regulate the conduct of individual or entity. A quasi-judicial agency has also been defined as “an organ of
government, other than a court or legislature, which affects the rights of private parties through either adjudication
or rule-making.
Essentially, a quasi-judicial agency is one which exercises a discretion that is essentially judicial in character but
is not a tribunal within the judicial branch of government and is not a court exercising judicial power in the
constitutional sense.
• As the welfare state has grown up in the size and functions, the more and litigations are pending in the
• With the scientific and economic development the laws have become more complex, which demand more
• The conventional judiciary is suffering with procedural rigidity, which delays the justice.
1. Administrative bodies exercising quasi-judicial functions, whether as part and parcel of the Department or
otherwise.
2. Administrative adjudicatory bodies which are outside the control of the Department involved in the dispute
and hence decide disputes like a judge free from judicial bias Example: The Income Tax Appellate Tribunal
3. Tribunals under Article 136 in which the authority exercises inherent judicial powers of the State. Because
the functions of the body are considered important over the control, composition and procedure, even
4. Tribunals constituted under Article 323A and 323B and having constitutional origin and enjoy the powers and
4. Advantages of Tribunals
1. Low Cost
2. Accessibility
3. Simplicity
5. Reasoned judgments
5. Disadvantages of Tribunals
1. There is an unfair imbalance between represented and unrepresented parties. It is unfair to people who are not
represented and cannot get legal aid to come up against a rich corporation. Since richer parties are allowed to
2. The no-costs rule and lack of legal aid penalize poor litigants, although they do keep costs down.
3. The lack of fees encourages poor applicants, although it may also result in ill-founded claims.
4. Tribunals can become complex over time - as did the courts - rules of procedure grow up caused by the use of
6. It can still be difficult for the people who go to tribunals to represent themselves because of the inherent
Ordinary judiciary is still overburden. It is because that the party who lost the case in the tribunal, more often than
not, approach the higher judiciary. It not cheap as more technical issues always pave the way for lawyer. Many
members of these bodies are ex-bureaucrates with out any training of the law. Its independence is compromised.
• Members should be from both the technical background and legal one.
• The chairman should be appointed by President from sitting or retired judge of a High Court in
• Vice-chairman should be a judge of district court or an advocate who is eligible to become a judge of HC.
The Constitution (Forty-second Amendment) Act, 1976 inserted new Part XIVA on ‘Tribunals’ in the
Constitution. Article 323A empowers Parliament to provide, by law, for the adjudication or trial by administrative
tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to
public services and posts in connection with the affairs of the Union or of any State. The law may provide for the
establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or
for two or more States. The law may take out adjudication of disputes relating to service matters from the hands of
the civil courts and the High Courts. Pursuant to the provisions of article 323A, Parliament enacted the
Administrative Tribunals Act, 1985 (Act) to establish an Administrative Tribunal for the Union, viz., the Central
Administrative Tribunal and a separate Administrative Tribunal for a State or a Joint Administrative Tribunal for
two or more States. The establishment of Administrative Tribunals became necessary since a large number of
cases relating to service matters were pending before various courts. It was expected that the setting up of the
Administrative Tribunals would not only reduce the burden of courts, but would also provide speedy relief to the
In S. P. Sampath Kumar case, the Supreme Court directed the carrying out of certain measures with a view to
ensuring the functioning of the Administrative Tribunals along constitutionally sound principles. The changes
were brought about in the Act by an amending Act. Jurisdiction of the Supreme Court under article 32 was
restored. Constitutional validity of the Act was finally upheld in S. P. Sampath Kuma case subject to certain
amendments relating to the form and content of the Administrative Tribunals. The suggested amendments were
carried out by another amending Act. Thus became the Administrative Tribunals an effective and real substitute
for the High Courts. In 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar held that clause 2
(d) of article 323A and clause 3(d) of article 323B, to the extent they empower Parliament to exclude the
jurisdiction of the High Courts and the Supreme Court under articles 226/227 and 32 of the Constitution, are
unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted
under the aegis of articles 323A and 323B would, to the same extent, be unconstitutional. The Court held that the
jurisdiction conferred upon the High Courts under articles 226/227 and upon the Supreme Court under article 32
of the Constitution is part of the inviolable basic structure of our Constitution. All decisions of the Administrative
Tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal
concerned falls. As a result, orders of the Administrative Tribunals are being routinely appealed against in High
Courts, whereas this was not the position prior to the L. Chandra Kumar’s case. On 18th March 2006, the
Administrative Tribunals (Amendment) Bill, 2006 was introduced in Rajya Sabha to amend the Act by
incorporating therein, inter alia,provisions empowering the Central Government to abolish Administrative
Tribunals, and for appeal to High Court to bring the Act in line with L. Chandra Kumar. The Department-related
Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 17th Report on the
said Bill did not subscribe to the same and as for the provision for appeal to High Court expressed the view that
the original conception of the Administrative Tribunals be restored and appeal to High Court is unnecessary, and
that if a statutory appeal is to be provided it should lie to the Supreme Court only.
In the above backdrop, the Law Commission took up the study on the subject suo motu. The Administrative
Tribunals were conceived as and constitute an effective and real substitute for the High Courts as regards service
matters. Moreover, the power of judicial review of the High Courts cannot be called as inviolable as that of the
Supreme Court. The very objective behind the establishment of the Administrative Tribunals is defeated if all the
5 www.visionias.in ©Vision IAS
cases adjudicated by them have to go before the concerned High Courts. If one appeal is considered to be a must,
an intra-tribunal appeal would be the best option, and then the matter can be taken to the Supreme Court by way of
special leave petition under article 136. The Law Commission is of the view that L. Chandra Kumar’s case needs
to be revisited by a Larger Bench of the Supreme Court or necessary and appropriate amendments may be effected
ADR (Alternate Dispute Resolution) system has been an integral part of our historical past. India has a long
tradition and history of such methods being practiced in the society at grass roots level. In ancient times the
disputes were used to be referred to “panchayat” which were established at village level.
(i) Evolution
The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats, pursuant to the
constitutional mandate in Article 39-A of the Constitution of India. It contains various provisions for settlement of
disputes through Lok Adalat. It is an Act to constitute legal services authorities 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 by reason of economic or other disabilities, and to organize Lok Adalats to secure that the
(ii) Jurisdiction
A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties
(ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok
Adalat is organised.
The Lok Adalat can compromise and settle even criminal cases, which are compoundable under the relevant laws.
(iii) Powers
The Lok Adalat shall have the powers of a civil court under the Code of Civil Procedure, 1908, while trying a
• Power to summon and enforce the attendance of any witness and to examine him/her on oath.
• Power for requisitioning of any public record or document or copy thereof or from any court.
• Every Lok Adalat shall have the power to specify its own procedure for the determination of any
• All proceedings before a Lok Adalat shall be deemed to be judicial proceedings under IPC
• Every Lok Adalat shall be deemed to be a Civil Court for the purpose under Cr.P.C.
The National Green Tribunal has been established in 2010 under the National Green Tribunal Act 2010 for
effective and expeditious disposal of cases relating to environmental protection and conservation of forests and
other natural resources including enforcement of any legal right relating to environment and giving relief and
compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is
a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-
disciplinary issues. The Tribunal shall not be bound by the procedure laid down under the Code of Civil
The Tribunal's dedicated jurisdiction in environmental matters shall provide speedy environmental justice and
help reduce the burden of litigation in the higher courts. The Tribunal is mandated to make and endeavour for
disposal of applications or appeals finally within 6 months of filing of the same. Initially, the NGT is proposed to
be set up at five places of sittings and will follow circuit procedure for making itself more accessible. New Delhi
is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four
During the Rio De Janeiro summit of United Nations Conference on Environment and Development in June 1992,
India vowed the participating states to provide judicial and administrative remedies for the victims of the
pollutants and other environmental damage. There lies many reasons behind the setting up of this tribunal. After
India's move with Carbon credits, such tribunal may play a vital role in ensuring the control of emissions and
maintaining the desired levels. This is the first body of its kind that is required by its parent statute to apply the
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"polluter pays" principle and the principle of sustainable development. This court can rightly be called ‘special’
because India is the third country following Australia and New Zealand to have such a system
COMMISSION
The Consumer Protection Act, 1986 (in short, ‘the Act’), is a benevolent social legislation that lays down the
rights of the consumers and provides their for promotion and protection of the rights of the consumers. The first
and the only Act of its kind in India, it has enabled ordinary consumers to secure less expensive and often speedy
redressal of their grievances. By spelling out the rights and remedies of the consumers in a market so far
dominated by organized manufacturers and traders of goods and providers of various types of services, the Act
makes the dictum, caveat emptor (‘buyer beware’) a thing of the past. The Act mandates establishment of
Consumer Protection Councils at the Centre as well as in each State and District, with a view to promoting
consumer awareness.
To provide inexpensive, speedy and summary redressal of consumer disputes, quasi-judicial bodies have been set
up in each District and State and at the National level, called the District Forums, the State Consumer Disputes
Redressal Commissions and the National Consumer Disputes Redressal Commission respectively.
Each District Forum is headed by a person who is or has been or is eligible to be appointed as a District Judge and
each State Commission is headed by a person who is or has been a Judge of High Court.
The provisions of this Act cover ‘goods’ as well as ‘services’. The goods are those which are manufactured or
produced and sold to consumers through wholesalers and retailers. The services are in the nature of transport,
A written complaint, can be filed before the District Consumer Forum for pecuniary value of upto Rupees
twenty lakh, State Commission for value upto Rupees one crore and the National Commission for value
above Rupees one crore, in respect of defects in goods and or deficiency in service. The service can be of any
description and the illustrations given above are only indicative. However, no complaint can be filed for alleged
deficiency in any service that is rendered free of charge or under a contract of personal service.
The remedy under the Consumer Protection Act is an alternative in addition to that already available to the
aggrieved persons/consumers by way of civil suit. In the complaint/appeal/petition submitted under the Act, a
consumer is not required to pay any court fees but only a nominal fee.
8 www.visionias.in ©Vision IAS
Consumer Fora proceedings are summary in nature. The endeavor is made to grant relief to the aggrieved
consumer as quickly as in the quickest possible, keeping in mind the provisions of the Act which lay down time
If a consumer is not satisfied by the decision of a District Forum, he can appeal to the State Commission. Against
the order of the State Commission a consumer can come to the National Commission.
In order to help achieve the objects of the Consumer Protection Act, the National Commission has also been
conferred with the powers of administrative control over all the State Commissions by calling for periodical
(2) Prior service of copies of documents produced by one party to the opposite parties,
(4) generally over-seeing the functioning of the State Commissions and the District Forums to ensure that the
objects and purposes of the Act are best served, without interfering with their quasi-judicial freedom.
VISIONIAS ™
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Content:
1 Introduction Revised Value Addition Material
Background
Need
2 Regulation in India
Evolution of Regulation in India
Types of Regulation in India
Categories of Regulators in India
Statutory Independent Regulatory Agencies
Self Regulatory Authorities
Issues Related to Regulation in India
Independence
Accountability
Transparency
Important Regulatory Bodies
Securities and Exchange Board of India
Insurance Regulatory and Development Authority
Competition Commission of India
Telecom Regulatory Authority of India (TRAI)
Interaction between Policy Makers and Regulators and its Current Status
Participation of Stakeholders in the Regulatory Process
Competition Authority vs. Sector Regulators
Consumer Redress
Regulatory Coherence
Future Course of Action
3 Fiscal Sector Legislative Reforms Commission (FSLRC)
Comments Relating to Independence of Regulatory Bodies
Recommendation with Regards to Accountability
4 Recommendations of 2nd ARC
5 Single Super-Regulator vs. Multiple Regulators
Arguments in favor of Unified Supervision
Arguments against Unified Regulation
6 Enforcement Directorate
Origin and Evolution
Functions
Student Notes:
1] Introduction
Regulation may be broadly understood as an effort by the state to address social risk, market
failure or equity concerns through rule-based direction of social and individual action.
Regulation is an attempt to control or influence private behaviour in the desired direction by
imposing costs on or proscribing undesirable behaviour. Since regulation can have important
consequences for economic efficiency and private incentives, it is usually justified only under
special conditions like prevention of market failures, restriction or removal of anti-competitive
practices, and promotion of public interest.
Background
The role of the state in economic and social life has dramatically changed from being the main
provider of social and economic services to being a rule-maker and regulator. The new mode of
the state with its structures and relationships is characterised by an increase in the regulatory
functions and responsibilities. These changes have paved the way to the emergence of a state
increasingly defined by the volume, diversity and complexity of its regulatory institutions. This
state is known as the regulatory state.
Contrary to what was expected, liberalisation and privatisation during the 1980s and 1990s
have led to a vast growth in the state’s regulatory obligations. In India, the regulatory role of
government stems from the provisions of the Constitution, which empower the Union and
State Legislatures to make laws on various subjects. The Constitution empowers the State to
impose reasonable restrictions on the exercise of various rights conferred by Article 19 in the
interest of public order, sovereignty and integrity of India, protecting the interest of the general
public, or in the interest of decency, morality etc. Consequently, there is a plethora of laws and
rules, which seek to regulate the activities of individuals and groups of individuals. The
Constitution as well as the laws enacted by Parliament have established the institutions and
mechanisms to enforce the laws and rules. Article 53(1) of the Constitution regulates the
exercise of the executive powers of the Union. Further, Article 53(3) authorizes the Parliament
to confer by law such functions to ‘authorities’.
Need
There are three sets of justifications for regulatory interventions:
(i) Prevention of Market Failure
Market failure is a condition in which the market mechanism fails to allocate resources
efficiently to maximize social welfare. Market failures occur in the provision of public goods, in
case of natural monopolies or asymmetric information, and in the presence of externalities.
• A natural monopoly occurs when an entire market is more efficiently served by one
firm than by two or more firms due to increasing returns to scale. Natural monopolies
enjoy scale benefits that protect them from competition; entry by other firms tend to
lead to inefficient production i.e. the average cost of output is much higher with entry
by multiple firms than with the existence of just one firm. In such cases, regulation may
be necessary to protect consumer interests. In doing so, regulation might bar the entry
of new firms into the sector and protect the monopoly status of the incumbent
operator. In India, the transmission and distribution of electricity is still natural
monopolies.
• Asymmetric information is a situation where one party to a transaction knows more
about the product than another. This prevents the market mechanism from achieving
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
2] Regulation in India
Evolution of Regulation in India
Post-independence, India experimented with a “socialist mixed economy model" with the state
retaining control over the commanding heights of the economy – heavy industries and utilities.
While private sector activity was allowed, the government tried to control it through a web of
controls such as licensing and quotas in regard to intermediate goods, imports and outputs.
Such controls were complemented by high tariff walls. Thus, the government was not only a
producer and regulator of strategic and important goods and services; it also exerted direct
control over the output, and sometimes even associated prices, of private sector activity. Given
that electoral pressures exerted by various interest groups did affect regulatory actions by the
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:
government, such regulation can hardly be labeled as “independent”. After 1985, the Indian
economy embarked on a process of domestic reform, which involved the following elements –
delicensing of industries and abolition of output quotas or bounds on outputs of firms,
permission for private entry into sectors, which were hitherto the monopoly of the
government, and liberalisation of quotas and tariffs on capital good imports.
From 1991 onwards, liberalisation of the external sector meant that tariff reductions were
extended to almost the entire spectrum of merchandise trade and conditions for foreign
investment were simplified and liberalised. The process of domestic reform and external
liberalisation is still ongoing. However, the producer profile in various sectors has undergone a
significant change with private firms co-existing with government firms in many sectors, which
were previously government monopolies (e.g. electricity, telecommunications). The consensus
among decision makers has been that independent regulation is required in such sectors to
guarantee a level playing field. As a result, independent regulators have been constituted in
various sectors, starting with electricity and telecommunications, and the number is still on the
rise. Regulation in India can be mapped under three broad categories: economic regulation,
regulation in the public interest and environmental regulation.
Types of Regulation in India
Regulation in India can be mapped under three broad categories: economic regulation,
regulation in the public interest and environmental regulation.
(i) Economic Regulation
Economic regulation aims at preventing or tackling market failure. This is achieved with rules
that proscribe and punish market distorting behaviour. In the Indian context include The
Electricity Act of 2003, which allows State regulators to fix tariffs for power consumption, thus
preventing suppliers from taking advantage of natural monopolies.
(ii) Regulation in the Public Interest
This covers areas where industries are failing to meet a standard or uphold something of public
importance. This is different from market failure. A classic case is of health and safety, where
firms can fall short in protecting employees or the general public from harm. The Bureau of
Indian Standards (BIS) created by the Bureau of Indian Standards Act, 1986 has been setting
quality and safety standards for various products, some of which are mandatory. Such
regulations are necessary due to low level of consumer awareness, skewed income
distribution and lack of capacity of majority of the population to pay for essential services,
essential needs such as food security. This calls for support pricing of food grains and
encourages farmers to maintain a higher acreage under food grain cultivation, thereby
enhancing food security.
(iii) Environmental Regulation
Environmental regulation covers actions to protect the environment from harm. A healthy
environment is desirable not just on aesthetic grounds, but because environmental degradation
imposes costs on land, labour and resources that have important consequences for economic
development. In India, environment protection has been given constitutional status. The
Directive Principles of State Policy state that protecting and improving the environment is the
duty of the State as well as citizens of the country. The Government of India has enacted
various laws to protect the environment through the Environment (Protection) Act, 1986 as
the umbrella legislation. Ministry of Environment and Forests is the nodal agency for
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environmental legislation. However, several states have also enacted their own legislation
besides the major ones enacted by the Central Ministry. The State Pollution Control Board
(SPCB) established in each state, is responsible for implementing these legislations as well as
issuing rules and regulations prescribing the standards for a clean environment. The activities of
SPCBs are coordinated by the Central Pollution Control Board (CPCB).
Categories of Regulators in India
There are primarily two types of regulatory agencies:
Statutory Independent Regulatory Agencies
Regulation by government through its own Departments or Agencies directly under its control
has always existed. The last century has seen the emergence of a special category of regulatory
systems – the Independent Statutory Regulating Agencies. These agencies differ from the
conventional regulating system as they are separated from the executive wing of the
government and enjoy a certain degree of autonomy. The concept of independent regulations
took birth in USA. The basic premise of the establishment of these agencies being that a market
based economy needs to be regulated in order to ensure a level playing field to all and also to
safeguard the larger public and national interest. Other factors, which favoured the creation of
independent regulators were:
i. Increasing complexities and the advancement of technologies required for handling
of issues by experts;
ii. Public interest is best served by insulating decision-making in certain issues, from
political interference.
In India, with the initiation of the process of economic liberalization in the early 90s,
government withdrew from many activities, which hitherto were monopolized by it. The entry
of corporate sector necessitated certain measures to boost the investor competence and to
safeguard public interest. One such measure was setting up of independent regulators. In
addition, the traditional departmental structure of government was not best suited to play the
dual role of a policy making as well as regulating the sector concerned.
Self Regulatory Authorities
These Authorities are created under different laws but they are self-regulatory in nature. The
functions of Self-Regulatory Bodies may include: (i) issues of professional education (ii) matters
connected with licensing, and ethical conduct of the practitioners.
Issues Related to Regulation in India
Independence
Regulatory efficacy demands functional independence, which calls for the regulator maintaining
an arm’s length relationship from interest groups. One aspect of such autonomy is the ability of
the regulator to access funds, the magnitude of which does not depend on the whim of the line
ministry i.e. financial independence. However, independence requires satisfaction of other pre-
conditions- regulators once appointed should have fixed tenure and immunity from removal
except in the case of incompetence and moral turpitude. In India, sector regulators have been
mandated with independence though such autonomy is limited in various aspects. Moreover,
there is a difference between mandated and delegated independence, with the latter much
lower than the former due to control exercised by the executive. Functional independence is
often curbed by the dependence of regulators on concerned line ministries for budgetary
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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allocations and sanctioning of staff appointments as well as the need for the former to report to
the latter. Again on the lines of what has been mentioned above, there is no uniformity in the
independence and funding of different regulators. While the Finance Ministry has been
proactive in providing secure funding and resultant independence to the regulators reporting to
it, this principle has been largely ignored by many other ministries.
Accountability
Independence must go hand in hand with accountability. Along with independence, all
regulators need to be accountable. Appropriate mechanisms are required to make independent
regulatory agencies accountable. Accountability is of two types: political and legal. In India,
regulatory bodies in general have the following features that are relevant to their
accountability:
i. They have been constituted on the basis of statute, which also lays down terms of
appointment and removal of Board Members.
ii. Their decisions can be appealed against before a specified appellant authority in most
cases. Naturally, they are also subject to the writ jurisdictions of High Courts and the
Supreme Court.
iii. The accounts of regulator are audited by the Comptroller and Auditor General.
iv. They are legally bound to prepare an annual report and submit to the Government,
which in turn lays it before each House of Parliament.
v. The respective statutes have mandated that regulators shall ensure transparency while
exercising their powers and discharging their functions.
vi. The Chairman, Members and officers of regulators are deemed to be public servants
within the meaning of Section 21 of the Indian Penal Code (IPC).
Parliamentary supervision seems to be the ideal form of political accountability as
accountability to the line ministry can often be associated with pressure being exerted on the
regulator to favour utilities being operated by the ministry. Similarly, vested interest groups
often find it easier to effectively pressurise the regulator through the line ministry rather than
through the Parliament. Therefore, replacing the line ministry’s control by Parliamentary
supervision across the board is necessary. This provision was also put forward by 2nd ARC, as
discussed in a subsequent section.
The regulator’s actions are questioned only when there is an impending crisis or a serious
debate in the country. In fact, in most such cases it is the line ministry that is questioned, and
not the regulator. Such misperception enables the line ministry to interfere in the functioning of
the regulatory body.
As mentioned earlier, legal accountability allows review of a regulator’s specific decisions. It is
important to ensure that the review process does not create a second layer of regulation, as
experienced in the telecom sector. In the telecom sector, the role of the appellate tribunal,
Telecom Disputes Settlement and Appellate Tribunal (TDSAT), is quite wide. The TDSAT and not
the TRAI has been empowered to settle disputes. This division of labour has adversely affected
the performance of the telecom regulator as any issue can be presented as a dispute.
Nevertheless, there are some benefits- judicial review is considered important in guarding
against decisions by a regulatory agency, which falls outside its statutory mandate or fail to
follow established administrative procedures. TDSAT has taken decisions in certain cases where
TRAI has seemingly not followed due process. Appellate powers are also not uniform across
sectors. Unlike TDSAT, the Securities Appellate Tribunal (SAT) can only entertain appeals against
the decisions of the capital market regulator, Securities & Exchange Board of India (SEBI).
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Transparency
It is important to have a transparent regulatory process. The regulatory process must
incorporate some crucial steps to ensure transparency. For example, stakeholders must be
made aware of the regulatory process and should be given opportunities to present their views
freely. In certain cases, regulatory legislation in India has made provisions to guarantee a
transparent regulatory process. For example, in the electricity and telecom sectors, it has been
mandated that regulators should ensure transparency while exercising their powers and
discharging functions. In the case of Tariff Authority for Major ports (TAMP), no specific
provisions regarding transparency exist in the legislation. However, TAMP has attempted to
introduce transparency through guidelines. No provision in regard to transparency exists in the
Competition Act, but a provision does exist in the general governance principles expounded by
the government. Furthermore, the Right to Information (RTI) Act empowers citizens to seek
information on any matter from any government department or undertaking.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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investing. The autonomy of SEBI has been compromised as it, more or less, functions as a
branch of the Union Finance Ministry.
Insurance Regulatory and Development Authority
Insurance Regulatory and Development Authority (IRDA) is an autonomous apex statutory
body, which regulates and develops the insurance industry in India. It was constituted by
Insurance Regulatory and Development Authority Act, 1999.
(a) Powers and functions
• Issue to the applicant a certificate of registration and suspend or cancel such
registration;
• Protection of the interests of the policy holders in matters concerning assigning of
policy, nomination by policy holders, insurable interest, settlement of insurance claim,
surrender value of policy and other terms and conditions of contracts of insurance;
• Specifying requisite qualifications, code of conduct and practical training for
intermediary or insurance intermediaries and agents;
• Promoting efficiency in the conduct of insurance business;
• Calling for information from, undertaking inspection of, conducting enquiries and
investigations including audit of the insurers, intermediaries, insurance intermediaries
and other organizations connected with the insurance business;
• Control and regulation of the rates, advantages, terms and conditions that may be
offered by insurers in respect of general insurance business not so controlled and
regulated by the Tariff Advisory Committee;
• Regulating investment of funds by insurance companies;
• Adjudication of disputes between insurers and intermediaries or insurance
intermediaries.
Competition Commission of India
Competition Commission of India is a body of the Government of India responsible for
enforcing the Competition Act, 2002 throughout India and to prevent activities that have an
adverse effect on competition in India. The Competition Act, 2002, as amended by the
Competition (Amendment) Act, 2007, follows the philosophy of modern competition laws. The
Act prohibits anti-competitive agreements, abuse of dominant position by enterprises and
regulates combinations (acquisition, acquiring of control and Merger and acquisition), which
causes or are likely to cause an appreciable adverse effect on competition within India.
(a) Function and Responsibilities
• Make the markets work for the benefit and welfare of consumers.
• Ensure fair and healthy competition in economic activities in the country for faster and
inclusive growth and development of economy.
• Implement competition policies with an aim to effectuate the most efficient utilization
of economic resources.
• Develop and nurture effective relations and interactions with sectoral regulators to
ensure smooth alignment of sectoral regulatory laws in tandem with the competition
law.
• Effectively carry out competition advocacy and spread the information on benefits of
competition among all stakeholders to establish and nurture competition culture in
Indian economy.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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redressal provisions. However, over the years, because of factors like inadequate budgetary
allocation and lack of autonomy the MRTPC (the predecessor of CCI governed by MRTPA) has
not been very effective in providing redress and consequently pending cases have kept piling
up. The CCI is expected to serve consumers better in terms of redress. In addition to the
above, some sector regulators such as telecom, electricity and insurance also have redressal
mechanisms: generic complaint redress by TRAI, telephone adalats (courts), grievance redressal
mechanisms of State Electricity Commissions, the consumer grievance redress cell of the
Insurance Regulatory Development Authority (IRDA), insurance ombudsman, banking
ombudsman etc.
Regulatory Coherence
A robust overarching regulatory philosophy/framework is needed for coordinated development
of the economy and its constituent sectors. However, the evolution of regulatory institutions in
India is not guided by a common philosophy. Political constraints and government preferences
seem to have dominated the reform agenda.
More than twenty years of independent regulation in India have been characterized by the
government’s inability to create and follow a cogent and coherent approach to independent
regulation. At the state level, Bureau of Industrial Promotion (BIP) works as a nodal agency to
provide regulatory coherence, i.e. it is the nodal agency for expediting clearance of private
sector projects. Being a nodal agency, it interacts with all the regulatory bodies at the state level
and tries to ensure coherence among them. But in practice it has not been very effective.
Overall regulatory coherence may be improved by making the following institutional
arrangements:
• Sector specific apex bodies need to be established at the Centre. These bodies should
be complemented by a well-endowed economy wide regulatory and competition
authority in each state.
• An appellate tribunal for all appeals against sector regulators needs to be established. If
the workload increases in any one sector, these can be hived off.
• Interface between regulators and the Competition Commission needs to be formalized
in legal terms so that there is no conflict between them and impugned parties do not
take advantage of the same.
• Multi-stakeholder participation should be the way forward, which can effectively take
care of several concerns with regard to regulatory efficacy and accountability.
Consumer organizations need to be strengthened with resources so that they can be
effective advocates.
Future Course of Action
The government is planning to bring following reforms in the institutional framework of
regulatory commissions, their role, functions and relationship with the executive and
legislature, their interface with markets and people, and processes and methods of regulation
including rule making and dispute resolution:
• Empowering all regulators to make and enforce regulations, issue licenses and impose
punitive measures including suspension or cancellation of licenses; and set
performance standards and determine tariffs.
• Ensuring independence of regulatory bodies: the government is planning to make the
selection process transparent and shorn of interference.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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A description of the market outcome, which is an inefficient one (“a market failure” in
o
Economics parlance);
o Demonstration that solving this market failure is within the objectives of the
regulator;
o Clear and precise exposition of the proposed intervention;
o Demonstration that the proposed intervention is within the powers of the regulator;
o Demonstration that the proposed intervention would address the identified market
failure;
o Demonstration that the costs to society through complying with the intervention are
outweighed by the gains to society from addressing the market failure.
• The Rule of Law: A crucial element of accountability and independence of regulators is
three core principles of the rule of law:
o Laws should be known before an action takes place.
o Laws should be applied uniformly across similar situations.
o Every application of law should provide the private party with the information for
application of the law, the reasoning by which the conclusion was arrived at, and a
mechanism for appeal.
• Reporting: Once the objectives of an agency have been defined, it is meaningful to ask the
agency to report – e.g. in the Annual Report – the extent to which it has achieved these
objectives. Each agency should report on how it has fared on pursuing its desired
outcomes, and at what cost.
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iii. Self-regulation is the best form of regulation: In the field of taxation, there has
been a shift from departmental assessment to greater reliance on self-assessment.
This holds good for Union taxes such as Income tax, State taxes like the VAT and
local taxes like the property taxes. This principle of voluntary compliance can be
extended to other fields like building bye-laws, public health regulations etc. To
start with, this principle can straightaway be applied to cases where
permission/license is required to be renewed periodically.
iv. Regulatory procedures to be simple, transparent and citizen friendly: There
should be systemic reforms so as to minimize the scope for corruption. These
include simplifying transactions, using IT, promoting transparency, reducing
discretion, effective supervision etc.
v. Involving citizens’ groups, professional organizations in the regulation activities.
The burden of the enforcement machinery can be shared by associating citizens’
groups as well as professional organizations to certify compliance and report
violations of the regulations to the concerned authorities. Recently, in Delhi the
procedure for grant of building permissions has been simplified and registered
architects have been authorized to certify the building plans of houses. This has
helped in reducing the work of the civic agencies and reduced corruption as well.
This principle could be also extended to other spheres of activities.
In the 13th report of 2nd ARC, following steps have been proposed to improve the working of
independent regulators:
a. Setting up of a Regulator should be preceded by a detailed review to decide whether
the policy regime in the concerned sector is such that the Regulator would be better
placed to deliver the policy objectives of the department concerned.
b. In addition to the statutory framework, which underpins the interface between the
government and the regulator, each Ministry/Department should evolve a
‘Management Statement’ outlining the objectives and roles of each regulator and the
guidelines governing their interaction with the government. This would guide both the
government department and the Regulator.
c. There is need for greater uniformity in the terms of appointment, tenure and removal
of various regulatory authorities considering these have been set up with broadly
similar objectives and functions and should enjoy the same degree of autonomy. The
initial process of appointment of Chairman and Board Members should be transparent,
credible and fair.
d. The appointment of the Chairman and Board Members for all such regulatory
authorities should be done by the Union/State Governments after an initial screening
and recommendation of a panel of names by a Selection Committee. The composition
of the Selection Committee should be defined in the respective Acts and may broadly
follow the pattern laid down in the Electricity Regulatory Commission Act.
e. The tenure of the Chairman and Board Members could also be made uniform,
preferably three years or 65 years of age, whichever is earlier.
f. Legal provisions regarding removal of Board Members should be made uniform, while
at the same time ensuring sufficient safeguards against arbitrary removal. This could be
achieved by allowing removal by the Union Government only on fulfillment of certain
conditions as laid down in Section 6 of the IRDA Act with the additional safeguard that a
removal for abuse of power shall be preceded by an enquiry and consultation with
UPSC.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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6] Enforcement Directorate
Directorate of Enforcement is a multi-disciplinary organization mandated with the task of
enforcing the provisions of two special fiscal laws – Foreign Exchange Management Act, 1999
(FEMA) and Prevention of Money Laundering Act, 2002 (PMLA). The Directorate of
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Enforcement, with its Headquarters at New Delhi is headed by the Director of Enforcement.
There are five Regional offices at Mumbai, Chennai, Chandigarh, Kolkata and Delhi headed by
Special Directors of Enforcement. There are zonal offices headed by the Joint Directors and sub-
zonal offices headed by Deputy Directors.
Besides directly recruiting personnel, the Directorate also draws officers from different
Investigating Agencies, viz., Customs & Central Excise, Income Tax, Police, etc. on deputation.
Origin and Evolution
The origin of this Directorate goes back to 1st May, 1956, when an ‘Enforcement Unit’ was
formed, in Department of Economic Affairs, for handling Exchange Control Laws violations
under Foreign Exchange Regulation Act, 1947 (FERA ’47). This Unit was headed by a Legal
Service Officer, as Director of Enforcement with Headquarter at New Delhi and two branches at
Bombay and Calcutta.
In the year 1957, this Unit was renamed as ‘Enforcement Directorate’, and another branch was
opened at Madras. The administrative control of the Directorate was transferred from
Department of Economic Affairs to Department of Revenue in 1960. With the passage of time,
FERA’47 was repealed and replaced by FERA, 1973. For a short period of 04 years (1973 –
1977), the Directorate remained under the administrative jurisdiction of Department of
Personnel & Administrative Reforms.
With the onset of the process of economic liberalization, FERA, 1973, which was a regulatory
law was repealed and in its place, effective 1st June, 2000, a new law – Foreign Exchange
Management Act, 1999 (FEMA) came into operation. Further, in tune with the International
Anti Money Laundering regime, Prevention of Money Laundering Act, 2002 (PMLA) was
enacted, and entrusted for its enforcement to the Directorate.
Carved in the role of a multi-dimensional organization, the Directorate enforces two laws:
i. FEMA, a Civil Law having quasi-judicial powers, for investigating suspected
contraventions of the Exchange Control Laws and Regulations with the powers to
impose penalties on those adjudged guilty; and
ii. PMLA, a Criminal Law, whereby the Officers are empowered to conduct enquiries to
locate, provisionally attach/confiscate assets derived from acts of Schedules Offences,
besides arresting and prosecuting the Money Launderers.
Functions
The main functions of the Directorate are as under:
1. Investigate contraventions of the provisions of Foreign Exchange Management Act,
1999(FEMA). Contraventions of FEMA are dealt with by way of adjudication by
designated authorities of ED and penalties up to three times the sum involved can be
imposed.
2. Investigate offences of money laundering under the provisions of Prevention of Money
Laundering Act, 2002(PMLA) and to take actions of attachment and confiscation of
property if the same is determined to be proceeds of crime derived from a Scheduled
Offence under PMLA, and to prosecute the persons involved in the offence of money
laundering. There are 156 offences under 28 statutes, which are Scheduled Offences
under PMLA.
Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
18 www.visionias.in ©Vision IAS
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