Constitution Of India (Part 11) Flashcards
MEANING OF VOTING BEHAVIOUR
jkmvoting behaviour is also known as electoral behaviour. It is a form of political behaviour. It implies the behaviour of voters in the context of elections in a democratic political system.Voting behaviour (or the study of voting behaviour) is defined in the following way:Plano and Riggs: "Voting behaviour is a field of study concerned with the ways in which people tend to vote in public elections and the reasons why they vote as they do."Gordon Marshall: "The study of voting behaviour invariably focuses on the determinants of why people vote as they do and how they arrive at the decisions they make".Oinam Kulabidhu: "Voting behaviour may be defined as the behaviour that explicitly reflects voter's choices, preferences, alternatives, ideologies, concerns, agreements, and programmes in respect of various issues, questions pertaining to the society and nation"Stephen Wasby: "The study of voting behaviour involves an analysis of individual psychological make-up and their relation to political action as well as institutional patterns, such as the communication process and their impact on elections"
SIGNIFICANCE OF VOTING BEHAVIOUR
jkmPsephology, a branch of political science, deals with the scientific study of voting behaviour. This is a new term popularised by the American politicalscientists and political sociologists.The recorded history of voting goes back, at least, to the Greek Polis. The modern world for the study of voting behaviour, psephology, derives fromthe classical Greek 'Psephos', the piece of pottery on which certain votes, mainly about the banishment of those seen as dangerous to the state, were inscribed.The study of voting behaviour is significant for the following reasons:1. It helps in comprehending the process of political socialisation.2. It helps in examining the internalisation of democracy as a value among the elite as well as masses.3. It emphasises the real impact of revolutionary ballot box.4. It enables to throw light as to how far the electoral politics continue or break with the past.5. It helps to measure whether it is modern or primordial in the context of political development.
According to N.G.S. Kini, voting behaviour can be regarded as:
jkm1. A mode of legitimising democratic rule;2. Instancing "participation" in the political process involving integration into the political community;3. Instancing an act of decision-making;4. A role-action involving definite political orientation imbedded in a particular type of political culture; or5. A direct relation of the individual citizens to the formal government
DETERMINANTS OF VOTING BEHAVIOUR part 1
jkmIndian society is highly diversified in nature and composition. Hence, voting behaviour in India is determined or influenced by multiple factors.These several factors can be divided, into two broad categories, namely, socio- economic factors and political factors. These are explained below:1. Caste: Caste is an important factor influencing the behaviour of voters.Politicisation of caste and casteism in politics has been a remarkable feature of Indian politics. Rajni Kothari said "Indian politics is casteist,and caste is politicised"While formulating their election strategies, thepolitical parties always take into account the factor of caste.Paul Brass has very-well explained the role of caste factor in the Indian voting behaviour in the following way: "At the local level, in the country side, by far the most important factor in voting behaviour remains caste solidarityLarge and important castes in a constituency tend to back either a respected member of their caste or a political party with whom their caste members identify.However, local factions and local-state factional alignments that involve inter-caste coalitions, are also important factors in influencing voting behaviour"2. Religion: Religion is another significant factor which influences the electoral behaviour. Political parties indulge in communal propaganda and exploit the religious sentiments of the voters.The existence of various communal parties has further added to the politicisation of religion. Despite India being a secular nation, no political party ignores the influence of religion in electoral politics.3. Language: Linguistic considerations of the people influence their voting behaviour. During elections, the political parties arouse the linguistic feelings of the people and try to influence their decision-making.The reorganisation of states (in 1956 and later) on language basis clearly reflects the significance of language factor in Indian politics. The rise of some political parties like DMK in Tamil Nadu and TDP in Andhra Pradesh can be attributed to the linguism4. Region: Regionalism and sub-regionalism play an important role in voting behaviour. These parochial feelings of sub-nationalism led to the emergence and perpetuation of regional parties in various states.These regional parties appeal to the electorate on the ground of regional identities and regional sentiments. Sometimes, the secessionist parties call for the boycott of elections.5. Personality: The charismatic personality of the party leader plays an important role in electoral behaviour. Thus, the towering image of Jawaharlal Nehru, Indira Gandhi, Rajiv Gandhi, Jay Prakash Narayan, Atal Bihari Vajpayee and Narendra Modi has significantly influenced the electorate to vote in favour of their parties.Similarly, at the state level also, the charismatic personality of the regional party leader has been a significant factor of popular support in the elections.
DETERMINANTS OF VOTING BEHAVIOUR part 2
jkm6. Money: The role of money factor cannot be overlooked in explaining the voting behaviour. Despite the limitations on the election expenditures, crores of rupees are spent on elections.The voters seek money or liquor or goods in return for their votes. In other words, 'votes' are freely exchanged for 'notes'.However, money can influence the decisions of the voters only in the normal circumstances and not in a wave election.Paul Brass has very-well explained the meaning of a wave election in the following way: "A wave election is one in which a clear tendency begins to develop among the electorate in a single direction and in favour of a national party or its leader.It is based upon an issue or set of issues that transcend local calculations and coalition and draws the bulk of the uncommitted and wavering voters in the same direction as the word spreads from village to village and tea stall to tea stall"7. Performance of the Ruling Party: On the eve of elections, every political party releases its election manifesto containing the promises made by it to the electorate.The performance of the ruling party is judged by the electorate on the basis of its election manifesto. The defeat of Congress Party in 1977 elections and that of Janata Party in 1980 elections illustrates that the performance of the ruling party influences the voting behaviour.Thus, the anti-incumbency factor (which means dissatisfaction with the performance of the ruling party) is a determinant of electoral behaviour.8. Party Identification: Personal and emotional association with political parties plays a role in determining voting behaviourPeople who identify themselves with a particular party will always vote for that party irrespective of its omissions and commissions.Party identification was especially strong in the 1950s and 1960s. However, since the 1970s, there has been a decline in the number of strong party identifiers.9. Ideology: The political ideology professed by a political party has a bearing on the decision-making of the voters. Some people in the society are committed to certain ideologies like communism, capitalism, democracy, secularism, patriotism, decentralisation and so on.Such people generally support the candidates put up by the parties professing those ideologies. However, it must be printed out here that the number of such people is low.10. Other Factors: In addition to the above explained factors, there are also various other factors which determine the voting behaviour of the Indian electorate. These are mentioned below:(i) Political events preceding an election like war, murder of a leader, corruption scandals, etc.(ii) Economic conditions at the time of election like inflation, food shortage, unemployment, etc.(iii) Factionalism - a feature of Indian politics from bottom to top levels(iv) Age - old or young(v) Sex - men or women(vi) Education - educated or uneducated(vii) Habitation - rural or urban(viii) Class (income) - rich or poor(ix) Family and kinship(x) Candidate orientation(xi) Election campaign(xii) Political family background(xiii) Role of media
The following points explain the role of media in elections and voting behaviour: part 1
1. Information Dissemination Information dissemination in relation to elections, particularly during the process of elections is extremely important for all stakeholders. Starting from the announcement of elections to nomination, scrutiny, campaign, security arrangements, polling, counting, declaration of results, etc., all of these require widest circulation.The voter comes to know about the basics like: what, when, where and how of elections generally through the media. Even last minute changes of polling arrangements, violation of Model Code of Conduct (MCC), and violation of expenditure instructions, any untoward incidents or disturbances promptly come to the notice not only of the people but also of the Election Commission through the media.Newspapers and news channels have very enthusiastically made use of the information relating to educational, financial and criminal antecedents of candidates, contained in the affidavit filed by them along with their nomination paper, which is immediately uploaded on the Election Commission's website.This has contributed to further honesty andtransparency in the election system.2. Enforcement of MCC and other Laws In today's democratic and political landscape, the watch-dog role of the media is quite vital. Media can highlight incidents of use of muscle and money power by political parties or candidates and educate the electors on ethical and inducement-free voting practices.It can also expose violations of the MCC such as divisive or hate speeches or unverified allegations in campaigns aimed at influencing electors.Violations reported by media are followed up by the Election Commission as in dealing with formal complaints.The media can sensitise the political functionaries and the electorate about the MCC and relevant laws and instructions governing the conduct of elections.3. Compliance to Election Laws The Election Commission does not regulate media. It has however, the responsibility to enforce the provisions of law or Court directions, which might have linkages with media or certain aspects of media functioning.During elections, media is present and active at all stages which would also mean that they too conform to various laws governing the elections.These laws are mentioned below:(i) Section 126A of the Representation of the People Act, 1951: It prohibits conduct of exit poll and dissemination of their results during the period mentioned therein, i.e., the hour fixed for commencement of polls in the first phase and half hour after the time fixed for close of poll for the last phase in all the States and Union Territories.(ii) Section 126 of the Representation of the People Act, 1951: It prohibits displaying any election matter by mean of cinematograph, television or other similar apparatus, during the period of 48 hours ending with the hour fixed for conclusion of poll.(iii) Section 127A of the Representation of the People Act, 1951: The printing and publication of election pamphlets, posters, etc. is governed by itsprovisions, which make it mandatory to bear on its face the names and addresses of the printer and the publisher.(iv) Section 171H of the Indian Penal Code: It prohibits incurring of expenditure on, inter alia, advertisement without the authority of the contesting candidate.
The following points explain the role of media in elections and voting behaviour: part 2
jkm4. Voter Education and Participation There is scope for a much larger and committed partnership from media in the crucial area of voter awareness and participation. This is one of the most promising areas of the Election Commission-media relationship.There is a gap between what the voters 'should know' and what they 'actually know' in important areas like registration, EPIC/ identity proofs, Polling Station location, use of EVMs, timings of the poll, use of money/ muscle power by candidates etc.The elector should be well-informed when he/she goes to exercise his/ her franchise on the day of the polls. Voter education helps build an environment where values of democracy are understood and acted upon by the population.Media and civil society have an important role to play in fostering such an environment. To improve participation of all sections of the electorate, awareness levels need to be enhanced, especially amongst the freshly eligible youth, uneducated, residents of far-flung, inaccessible and remote areas, and socially and economically weaker sections of the society.Such segments need to be reached through the Media, apart from civil society and field based organisations. The Election Commission has in place a framework of engagement for collaboration between the Commission and Media Houses/ Organisations in this important area of voter participation.The Election Commission expects that the Media should volunteer to take up this task of informing, motivating and facilitating citizens to take part in the democratic elections.5. Responsibility of Government Media In broadcast of election related news or analysis, Public Service Broadcasters are expected to lead by example in terms of neutrality and objectivity, and adhere to various guidelines including their own.The Election Commission has a fruitful arrangement with Prasar Bharati in providing free broadcast time on All India Radio and Doordarshan to recognised National and State parties so as to ensure a level playing field in elections.The political parties in this manner can reach out to every corner of the country, even in the remotest parts. In addition to this, Prasar Bharati's contribution in spreading voter awareness and educating the public about their voting rights and responsibilities is of great consequence to the inclusion of all in the electoral process.The contribution of Prasar Bharati has come in good measure in this arena. The Election Commission also urges PIB, DAVP, National Film Development Corporation, Directorate of Field Publicity, Song and Drama Division and many other Central and State Information Directorates/ Departments to come forward and shoulder the same responsibility.
Rights and Liabilities of the Government Intro
jkmArticles 294 to 300 in Part XII of the Constitution deal with the property, contracts, rights, liabilities, obligations and suits of the Union and the states.In this regard, the Constitution makes the Union or the states as juristic (legal) persons.
PROPERTY OF THE UNION AND THE STATES
jkm1. Succession2. Escheat, Lapse and Bona Vacantia3. Sea-Wealth4. Compulsory Acquisition by Law5. Acquisition under Executive Power
1. Succession - PROPERTY OF THE UNION AND THE STATES
jkmAll property and assets that were vested in the Dominion of India or a province or an Indian princely state, before the commencement of the present Constitution, became vested in the Union or the corresponding state.Similarly, all rights, liabilities and obligations of the government of the dominion of India or a province or an Indian state would now be the rights, liabilities and obligations of the Government of India or the corresponding state.
2. Escheat, Lapse and Bona Vacantia - PROPERTY OF THE UNION AND THE STATES
jkmAny property in India that would have accrued to King of England or ruler of Indian state (princely) by escheat (death of a person inte-state without any heir), lapse (termination of rights through disuse or failure to follow appropriate procedures) or bona vacantia (property found without any owner) for want of a rightful owner, would now vest in the state if the property issituated there, and in the Union, in any other case. In all these three cases, theproperty accrues to the government as there is no rightful owner (claimant).
3. Sea-Wealth
All lands, minerals and other things of value under the waters of the oceanwithin the territorial waters of India, the continental shelf of India and theexclusive economic zone of India vests in the Union. Hence, a state near theocean cannot claim jurisdiction over these things.India's territorial waters extend to a distance of 12 nautical miles from theappropriate base line. Similarly, India's exclusive economic zone extendsupto 200 nautical miles1.
4. Compulsory Acquisition by Law
The Parliament as well as the state legislatures are empowered to make lawsfor the compulsory acquisition and requisitioning of private property by thegovernments. Further, the 44th Amendment Act (1978) has also abolished theconstitutional obligation to pay compensation in this regard except in twocases: (a) when the government acquires the property of a minorityeducational institution; and (b) when the government acquires the land heldby a person under his personal cultivation and the land is within the statutoryceiling limits
5. Acquisition under Executive Power
The Union or a state can acquire, hold and dispose property under theexercise of its executive power.Further, the executive power of the Union or a state extends to the carryingon any trade or business within and in other states also
SUITS BY OR AGAINST THE GOVERNMENT
Article 300 of the Constitution deals with the suits by or against thewww.freeupscmaterials.orgGovernment in India. It lays down that the Government of India may sue orbe sued by the name of the Union of India and government of a state may sueor be sued by the name of that state, eg, State of Andhra Pradesh or State ofUttar Pradesh and so on. Thus, the Union of India and states are legal entities(juristic personalities) for purposes of suits and proceedings, not theGovernment of the Union or government of states.Regarding the extent of the governmental liability, the Constitution(Article 300) declares that the Union of India or states can sue or be sued inrelation to their respective affairs in the like cases as the dominion of Indiaand the corresponding provinces or Indian states might have sued or beensued before the Constitution. This provision is subject to any law made byParliament or a state legislature. But, no such law has been enacted so far.Hence, at present, the position in this respect remains the same as it existedbefore the Constitution. In the pre-Constitution period (i.e., from the days ofthe East India Company up to the commencement of the Constitution in1950), the government was suable for contracts but not for torts (wrongscommitted by its servants) in respect of its sovereign functions. This isexplained in detail as follows:1. Liability for Contracts2. Liability for Torts
SUITS BY OR AGAINST THE GOVERNMENT- 1. Liability for Contracts
jkmUnder the exercise of its executive power, the Union or a state can enter intocontracts for the acquisition, holding and disposal of property, or to carry onany trade or business, or for any other purpose. But, the Constitution laysdown three conditions which must be fulfilled by such contracts:(a) They must be expressed to be made by the president or governor, as thecase may be;(b) They must be executed on behalf of the president or governor, as the casemay be; and(c) They must be executed by such person or in such manner as the presidentor governor may direct or authorise.These conditions are mandatory and not merely directory in nature. Failureto comply with them nullifies the contracts and renders them void andunenforceable in the courts.Further, the president or the governor is not personally liable in respect ofwww.freeupscmaterials.organy contract executed in his name. Similarly, the officer executing thecontract is also not personally liable. This immunity is purely personal anddoes not immunize the government from a contractual liability, making thegovernment suable in contracts. This means that the contractual liability ofthe Union government and the state governments is the same as that of anindividual under the ordinary law of contract, which has been the position inIndia since the days of the East India Company.
SUITS BY OR AGAINST THE GOVERNMENT- 2. Liability for Torts
In the beginning, the East India Company was only a trading body.Gradually, it acquired territories in India and became a sovereign authority.The Company was suable for its functions as a trader but not as a sovereign.This immunity of the Company in respect of its sovereign functions wasbased on the English Common Law maxim that the 'King can do no wrong',which means that the King was not liable for wrongs of his servants. Thistraditional immunity of the State (i.e., Crown) in Britain from any legalliability for any action has been done away by the Crown Proceedings Act(1947). However, the position in India still remains the same.Therefore, the government (Union or states) in India can be sued for torts(civil wrongs) committed by its officials only in the exercise of its nonsovereignfunctions but not in the sovereign functions like administeringjustice, constructing a military road, commandering goods during war, etc.This distinction between the sovereign and non-sovereign functions of theGovernment in India and the immunity of the government in respect of itssovereign functions was established in the famous P and O Steam NavigationCompany case3 (1861). This was reaffirmed by the Supreme Court in thepost-independence era in the Kasturilal case4 (1965). However, after thiscase, the Supreme Court started giving a restrictive interpretation tosovereign functions of the government and awarded compensation to victimsin a large number of cases.In Nagendra Rao Case4a (1994), the Supreme Court criticised the doctrineof sovereign immunity of the State and adopted a liberal approach withrespect to the tortuous liability of the State. It ruled that when a citizen suffersany damage due to the negligent act of the servants of the State, the Statewww.freeupscmaterials.orgwould be liable to pay compensation for it and the State cannot avoid thisliability on the ground of sovereign immunity. It held that in the modernsense, the distinction between sovereign and non-sovereign functions doesnot exist. It laid down the proposition that barring a few functions, the Statecannot claim any immunity. Its observations, in this case, are as follows:1. No civilised system can permit an executive to play with the people of itscountry and claim that it is entitled to act in any manner as it is sovereign.The concept of public interest has changed with structural change in thesociety. No legal or political system today can place the State above lawas it is unjust and unfair for a citizen to be deprived of his propertyillegally by negligent act of officers of the State without any remedy.2. The modern social thinking of progressive societies and the judicialapproach is to do away with archaic State protection and place the Stateor the Government at par with any other juristic legal entity. Any watertightcompartmentalisation of the functions of the State as "sovereign"and "non-sovereign" or "governmental" and "non-governmental" is notsound. It is contrary to modern jurisprudential thinking.3. The need of the State, duty of its officials and right of the citizens arerequired to be reconciled so that the rule of law in a welfare State is notshaken. In a welfare State, the functions of the State are not only thedefence of the country or administration of justice or maintaining law andorder but it extends to regulating and controlling the activities of thepeople in almost every sphereâeducational, commercial, social,economic, political and even marital.4. The demarcating line between sovereign and non-sovereign powers forwhich no rational basis survives has largely disappeared. Therefore,barring functions such as administration of justice, maintenance of lawand order and repression of crime etc., which are among the primary andinalienable functions of a constitutional Government, the State cannotclaim any immunity.In the above case, the Supreme Court did not overrule its judgement in theKasturilal case (1965). However, it said that it is applicable to rare andlimited cases.In Common Cause Case4b (1999), the Supreme Court again examined thewhole doctrine and rejected the sovereign immunity rule. The Court held thatwww.freeupscmaterials.orgthe rule of State liability as laid down in P. & O. Steam Navigation Companycase is very outmoded. It said that in modern times when the State activitieshave been considerably increased it is very difficult to draw a line between itssovereign and non-sovereign functions. The increased activities of the Statehave made a deep impression on all facets of citizens' life, and therefore, theliability of the State must be made co-extensive with the modern concept of awelfare State. The State must be liable for all tortuous acts of its employees,whether done in exercise of sovereign or non-sovereign powers4c. Finally, thecourt observed that the efficacy of Kasturilal case as a binding precedent hasbeen eroded.In the Prisoner's Murder case4d (2000), the Supreme Court ruled that in theprocess of judicial advancement Kasturilal case has paled into insignificanceand is no longer of any binding value.
SUITS AGAINST PUBLIC OFFICIALS -1. President and Governor
The Constitution confers certain immunities to the president of India andgovernor of states with regard to their official acts and personal acts. Theseare:(a) Official Acts The president and the governors cannot be sued duringthe term of their office or thereafter, for any act done by them in the exerciseand performance of their official powers and duties. However, the officialconduct of the president can be reviewed by a court, tribunal or any otherbody authorised by either House of Parliament to investigate charges forimpeachment. Further, the aggrieved person can bring appropriateproceedings against the Union of India instead of the president and the stateinstead of the Governor of that state.(b) Personal Acts No criminal proceedings can be started against thepresident and the governors in respect of their personal acts nor can they bearrested or imprisoned. This immunity is limited to the period of the term oftheir office only and does not extend beyond that. However, civil proceedingswww.freeupscmaterials.orgcan be started against them during their term of office in respect of theirpersonal acts after giving two months' advance notice.
SUITS AGAINST PUBLIC OFFICIALS- 2. Ministers
The Constitution does not grant any immunity to the ministers for theirofficial acts. But, since they are not required to countersign (as in Britain) theofficial acts of the president and the governors, they are not liable in thecourts for those acts5. Moreover, they are not liable for the official acts doneby the president and the governors on their advice as the courts are debarredfrom inquiring into such advice. However, the ministers do not enjoy anyimmunity for their personal acts, and can be sued for crimes as well as tortsin the ordinary courts like common citizens.
SUITS AGAINST PUBLIC OFFICIALS- 3. Judicial Officers
The judicial officers enjoy immunity from any liability in respect of theirofficial acts and hence, cannot be sued. The Judicial Officers Protection Act(1850) lays down that, 'no judge, magistrate, justice of peace, collector orother person acting judicially shall be liable to be sued in any civil court forany act done by him in the discharge of his official duty'.
SUITS AGAINST PUBLIC OFFICIALS- 4. Civil Servants
Under the Constitution, the civil servants are conferred personal immunityfrom legal liability for official contracts. This means that the civil servantwho made a contract in his official capacity is not personally liable in respectof that contract but it is the government (Central or state) that is liable for thecontract. But, if the contract is made without complying the conditionsspecified in the Constitution, then the civil servant who made the contract ispersonally liable. Further, the civil servants also enjoy immunity from legalliability for their tortious acts in respect of the sovereign functions of thegovernment. In other cases, the liability of the civil servants for torts orillegal acts is the same as of any ordinary citizen. Civil proceedings can beinstituted against them for anything done in their official capacity after givinga two months' advance notice. But, no such notice is required when thewww.freeupscmaterials.orgaction is to be brought against them for the acts done outside the scope oftheir official duties. Criminal proceedings can be instituted against them foracts done in their official capacity, with the prior permission of the presidentor the governor, where necessary6.
Table 64.1 Articles Related to Rights and Liabilities of the Government at aGlance
ArticleNo. Subject-matter294. Succession to property, assets, rights, liabilities and obligationsin certain cases295. Succession to property, assets, rights, liabilities and obligationsin other cases296. Property accruing by escheat or lapse or as bona vacantia297. Things of value within territorial waters or continental shelf andresources of the exclusive economic zone to vest in the Union298. Power to carry on trade, etc.299. Contracts300. Suits and proceedings361. Protection (immunities) of President and Governors
NOTES AND REFERENCES - rights & Labilities of Govt
1. Under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, passed by the Parliament afterthe 40th Constitutional Amendment Act, 1976.2. The first provision was added by the 44th Amendment Act (1978). This amendment abolished the Fundamental Right to property and made it alegal right. The second provision was added by the 17th Amendment Act (1964).5. In Britain, the ministers are required to countersign the official acts of thecrown and are held liable in the courts for those acts.6. Criminal Procedure Code saysâwhere a public servant who is notremovable from his office save by or with the sanction of the Central orstate government is accused of an offence, committed by him whileacting or purporting to act in the discharge of his official duty, no courtcan take cognizance of such offence without the previous sanction of theCentral government or the state government, as the case may be
CONSTITUTIONAL PROVISIONS
riginally, the Constitution of India did not make any provision withrespect to an authoritative text of the Constitution in the Hindilanguage. Later, a provision in this regard was made by the 58thConstitutional Amendment Act of 19871. This amendment inserted a newArticle 394-A in the last part of the Constitution i.e., Part XXII2. This articlecontains the following provisions:1. The President shall cause to be published under his authority :(i) The translation of the Constitution in Hindi language. Themodifications which are necessary to bring it in conformity with thelanguage, style and terminology adopted in the authoritative texts ofthe Central Acts in Hindi can be made in it. All the amendments ofthe Constitution made before such publication should be incorporatedin it.(ii) The translation in Hindi of every amendment of the constitutionmade in English.2. The translation of the Constitution and its every amendment publishedshall be construed to have the same meaning as the original text inwww.freeupscmaterials.orgEnglish. If any difficulty arises in this matter, the President shall causethe Hindi text to be revised suitably.3. The translation of the Constitution and its every amendment publishedshall be deemed to be, for all purposes, its authoritative text in Hindi.
REASONS FOR THE 58TH AMENDMENT
The reasons for adding the above provisions in the Constitution by the 58thConstitutional Amendment Act of 1987 are as follows:The Constitution of India adopted by the Constituent Assembly onNovember 26, 1949, was in the English language. A Hindi translation of theConstitution, singed by the members of the Constituent Assembly, was alsopublished in 1950 under the authority of the President of the ConstituentAssembly3. There had been a general demand for the publication of anauthoritative text of the Constitution in Hindi incorporating in it all thesubsequent amendments. It has also been imperative to have an authoritativetext of the Constitution in the Hindi language for facilitating its use in thelegal process. Further, any Hindi version of the Constitution should not onlyconform to the Hindi translation published by the Constituent Assembly in1950, but should also be in conformity with the language, style andterminology adopted in the authoritative texts of the Central Acts in Hindi. Itwas, therefore, proposed to amend the constitution so as to empower thePresident of India to publish under his authority the translation of theConstitution and its every amendment in Hindi language.In pursuance of Article 394-A, the President published in the Gazzette ofIndia, an authoritative text of the Constitution of India in the Hindi language.
NOTES AND REFERENCES- authoritative text
1. The 56th Constitutional Amendment Bill of 1987, after being passed byboth the Houses of Parliament and assented by the President, finallyemerged as the 58th Constitutional Amendment Act of 1987.2. Part XXII is entitled as 'Short Title, Commencement, Authoritative Textin Hindi and Repeals'. Originally, this part consisted of three Articlesonly - Article 393 (short title), Article 394 (commencement) and Articlewww.freeupscmaterials.org395 (repeals).3. In accordance with a resolution adopted by the Constituent Assembly.
National Commission toReview the Working intro
he National Commission to Review the Working of the Constitution(NCRWC) was set up by a resolution of the Government of India in20001. The 11-member Commission was headed by M.N. Venkatachaliah,the former Chief Justice of India2. It submitted its report in 2002
I. TERMS OF REFERENCE OF THE National Commission toReview the Workingof the Constitution
According to the terms of reference, the commission was required toexamine, in the light of the experience of the past fifty years, as to how farthe existing provisions of the Constitution are capable of responding to theneeds of efficient, smooth and effective system of governance and socioeconomicdevelopment of modern India and to recommend changes, if any.The terms of reference clearly specified that the commission shouldrecommend changes that are required to be made in the Constitution withinthe framework of parliamentary democracy and without interfering with the'basic structure' or 'basic features' of the Constitution.The commission clarified that its task was to review the working of theConstitution and not to rewrite it and its function was only recommendatoryand advisory in nature. It was left to the Parliament to accept or reject any ofwww.freeupscmaterials.orgthe recommendations.
National Commission toReview the Workingof the Constitution had no agenda before it. On its own, it identified the elevenareas of study and proposed to examine them. They included the following4
1. Strengthening of the institutions of parliamentary democracy (working ofthe Legislature, the Executive and the Judiciary; their accountability;problems of administrative, social and economic cost of politicalinstability; exploring the possibilities of stability within the discipline ofparliamentary democracy).2. Electoral reforms; standards in political life.3. Pace of socio-economic change and development under the Constitution(assurance of social and economic rights: how fair? how fast? howequal?).4. Promoting literacy; generating employment; ensuring social security;alleviation of poverty.5. Union-State relations.6. Decentralization and devolution; empowerment and strengthening ofPanchayati Raj Institutions.7. Enlargement of Fundamental Rights.8. Effectuation of Fundamental Duties.9. Effectuation of Directive Principles and achievement of the Preambularobjectives of the Constitution.10. Legal control of fiscal and monetary policies; public audit mechanism.11. Administrative system and standards in public life.
The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
What are our achievements and failures over the 50 years sinceIndependence? How have each of the three organs of the StateâtheLegislature, the Executive and the Judiciaryâredeemed the constitutionalpledge of ushering in a social revolution? Has the dream of the foundingfathers for a life of dignity to the vast millions through the process of socioeconomictransformation been realized ? What then is the Balance Sheet ?www.freeupscmaterials1. Political Accomplishments2. Economic InfrastructureâImpressive Performance3. Social InfrastructureâAchievements4. Political Failures5. Economic Failures6. Social Failures7. Administrative Failures8. Gender Justice and EqualityâFailures9. Judicial SystemâFailures
9. Judicial SystemâFailures- The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. Judicial system has not been able to meet even the modest expectations ofthe society. Its delays and costs are frustrating, its processes slow anduncertain.2. People are pushed to seek recourse to extra-legal methods for relief.3. Trial system both on the civil and criminal side has utterly broken down.On an overall assessment, there are more failures than success stories,making the inference inescapable that the fifty years of the working of theConstitution is substantially a saga of missed opportunities
8. Gender Justice and EqualityâFailures-The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. The regional disparities in life expectancy is indicated by the fact that awoman born in Kerala can expect to live 18 years longer than one born inMadhya Pradesh.2. In most countries life expectancy among women exceeds that of men byabout 5 years. In all but a few countries of the world, there are typically1005 women for every 1000 men. Men outnumber women only insocieties where women are specifically and systematically discriminated.In India, there are only 933 women for every 1000 men. This is thephenomenon about 'missing' women.3. Overall representation of women in public services is just 4.9 per cent.4. Political participation of women indicates that in 1952 there were only 22women in Lok Sabha against 499 seats (4.41 per cent). In 1991, thisincreased to 49 seats as against 544 seats (9.02 per cent).5. Between 1995-2000, out of 503 judges of the High Court, only 15 werewomen.
1. Political Accomplishments-The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. India's democratic base has stabilized as a working federal polity. Withthe 73rd and 74th Constitutional amendments, the base of democraticdebate has widened. There is greater push towards non-centralisation.General Elections have been held with regularity; and transfers of powerconsequent upon the results of elections have been orderly, peaceful anddemocratic.2. The educational qualifications of the Members of Parliament and StateLegislatures have shown marked improvements. The Parliament and StateLegislatures are increasingly more representative of the composition ofsociety. More and more members of the hitherto backward classes aremoving up in the political ladder.
2. Economic InfrastructureâImpressive Performance- The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. There has been marked expansion and diversification of production. Newtechnologies and modern management techniques are increasinglyemployed. There are marked advances in Science, Technology, Medicine,Engineering and Information Technology.2. Between 1950-2000, the index of agricultural production increased from46.2 to 176.8.3. Between 1960-2000, wheat production went up from 11 million tonnes to75.6 million tonnes.4. Between 1960-2000, rice production went up from 35 million tonnes to89.5 million tonnes.5. Impressive expansion of industrial and service sectors has taken place.6. Index of industrial production went up from 7.9 in 1950-51 to 154.7 in1999-2000.7. Electricity generation has increased from 5.1 billion KWH in 1950-51 to480.7 billion KWH in 1999-2000.8. 6 to 8 per cent annual growth of GNP between 1994-2000 (except in1997-98) was achieved.9. Revenues from Information Technology industry have grown from $ 150million in 1990 to $ 4 billion in 1999.10. India's per capita Net National Product (NNP) in 1999-2000 was morewww.freeupscmaterials.orgthan 2.75 times than what it was in 1951.
3. Social InfrastructureâAchievements- The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. Between 1950 to 1998, infant mortality rate have halved to 72 births per1000 birthsâdown from 146.2. Life expectancy at birth has grown up from 32 years in 1950-51 to 63years in 2000.3. A child born in Kerala today can expect to live longer than a child born inWashington.4. Life expectancy of women in Kerala is now 75 years.5. India has put in place an extensive system of Public Health Services andmedical network. In 1951, the country had only 725 primary healthcenters. By 1995, this has increased to more than 1,50,000.6. The number of primary schools has increased significantly between 1951and 1995 from 2,10,000 to 5,90,000.7. Nearly 95 per cent of the villages have a primary school within a walkingdistance of one kilometer.
4. Political Failures- The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. The main cause and source of political-decay is the ineptness of theelectoral process which has not been able to keep out criminal, anti-socialand undesirable elements from participating in and even dominating thepolitical scene and polluting the electoral and parliamentary processes.2. Though democratic traditions are stabilizing, however, democracy cannotbe said to be an inclusive representative democracy. The pluralism anddiversity of India is not reflected in and captured by its democraticinstitutions; likewise, participation of women in public affairs anddecision-making processes is nowhere near proportionate to theirnumbers.3. The enormity of the costs of elections and electoral corruption have beenhaving a grievous deleterious effect on national progress and has led tothe degradation of political processes to detriment of common good.4. Political parties, which have a fair share of the criminal elements, handleenormous funds collected ostensibly for meeting party and electoralwww.freeupscmaterials.orgexpenditure. Money-power and criminal elements have contributed topervasive degeneration of standards in public life and have criminalizedpolitics. This is reflected in the quality of governments and of thegoverning processes.5. There are no legal instrumentalities or set of law regulating the conduct ofthe political parties, legitimacy of fund-raising, audit and accountrequirements and inner-party democracy.6. National political parties are more divided on the definition of 'commonnational purpose' than ever before; the noble purposes of public life havedegenerated than ever before into opportunistic and self-seeking politicsof competitive personal gain.7. 'Fraternity', the noble ideal of brotherhood of man, enshrined in thePreamble of the Constitution has remained unrealized. The people ofIndia are more divided amongst themselves than at the time of thecountry's independence.8. There is increasing criminalization and exploitation of the politicalclimate and processes and an increasing criminals-politicians-bureaucraticnexus.9. There is crisis of confidence. There is crisis of leadership. Politicalleaders, owing to narrow partisan and sectarian interests and desire forshort-time political gains, are unable even to agree upon broad commonnational purposes.
5. Economic Failures- The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. The richest top quintile of population has 85 per cent of the income. Thepoorest quintile has only 1.5 per cent of the country's income. Thesecond, the third and the fourth quintile from top have respectively 8 percent, 3.5 per cent and 2 per cent of the income.2. 260 million people live below the poverty line.
6. Social Failures- The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. India's maternal mortality rate in 1998 was 407 per 100,000 live births.These levels are more than 100 times the levels found in the West.2. Some 53 per cent children (almost 60 million) under five remainwww.freeupscmaterials.orgmalnourishedânearly twice the levels reported in many parts of sub-Saharan Africa.3. The proportion of low birth weight babies born in India is 33 per cent. Itis only 9 per cent in China and South Korea, 6 per cent in Thailand and 8per cent in Indonesia.4. India was a signatory to the Alma Ata Declaration in 1978 that assured'health for all' by the year 2000. Only 42 per cent of the children between12-23 months are fully immunized - 37 per cent in rural areas and 61 percent in urban areas. The coverage is shockingly low in Bihar - 11 per centand in Rajasthan - 17 per cent.5. While per capita daily consumption of cereals has improved onlymarginally from 400 gms in 1950 to about 440 gms in 2000, the percapita pulses (protein intake) have over the 50 years decreased.6. The promise of social revolution has remained unredeemed. There are 270million Scheduled Castes and Scheduled Tribes and the measures fortheir welfare and uplift have not been implemented with sincerity.7. There are 380 million children below the age of 14. Almost 100 million ofthem are Dalit children. No effective steps are taken to bring them to thelevel of the "core-mainstream".8. Population control measures in the northern States have not succeeded.Fertility rates in Uttar Pradesh indicate that the State is almost a centurybehind Kerala.
7. Administrative Failures - The observations made by the National Commission to Review the Working of the Constitution on the working of the Constitution from 1950 to 2000 are as follows
1. Corruption, insensitivity and inefficiency of administration have resultedin extra-legal systems and parallel economies and even parallelgovernments. Bureaucratic corruption, which cause frustration in peoplein their daily lives, has pushed more and more people into extra-legalsystems. The mal-administration has resulted in a lack of faith in anddisenchantment with institutions of democracy.2. There is an increasing non-accountability. Corruption has been pervasive.Public interest has suffered.3. Constitutional protection for the Services under Article 311 has largelybeen exploited by dishonest officials to protect themselves from theconsequences of their wrong-doings.
The following are the important areas of concern according to the perceptionof the - National Commission to Review the Working of the Constitution
1. There is a fundamental breach of the constitutional faith on the part ofGovernments and their method of governance lies in the neglect of thepeople who are the ultimate source of all political authority. Publicwww.freeupscmaterials.orgservants and institutions are not alive to the basic imperative that they areservants of the people meant to serve them. The dignity of the individualenshrined in the Constitution has remained an unredeemed pledge. Thereis, thus, a loss of faith in the Governments and governance. Citizens seetheir Governments besieged by uncontrollable events and are losing faithin institutions. Society is unable to cope up with current events.2. The foremost area of concern is the present nature of the Indian State andits inability to anticipate and provide for the great global forces of changeushered in by the pace of scientific and technological developments.3. The next and equally important dimension is the increasing cost ofgovernment and fiscal deficits which are alarming. In 1947, there was adeficit of 2 crores in the revenue budget; in 1997-98, it became 88,937crores; in 2001-02, it is about 1,16,000 crores (4.8 per cent of GDP).India is on its way to a debt-trap.4. There is pervasive impurity of the political climate and of politicalactivity. Criminalisation of politics, political-corruption and thepolitician-criminal-bureaucratic nexus have reached unprecedented levelsneeding strong systemic changes.5. Issues of national integrity and security have not received adequate andthoughtful attention. Mechanisms for the assessment of early warningsymptoms of social unrest are absent. Mechanisms for adequate andimmediate state responses to emergencies and disaster management arewholly inadequate. Administration, as a system for anticipating comingevents and planning responses in advance, has failed. It has become uncoordinatedand directionless amalgam of different departments oftenwith over-lapping and even mutually conflicting jurisdictions, powers andresponsibilities which merely acts as a reaction to problems. There are noclear-cut standards or basis for fixing responsibilities.6. Though India's overall record and experience as a working democracy(despite many centrifugal forces) are worthy to mention and though thebases of democratic debate have widened with the 73rd and 74thConstitutional amendments, the working of the institutions ofparliamentary democracy, however, have thrown-up serious fault-lines,which might, if unattended, prove destructive of the basic democraticvalues.www.freeupscmaterials.org7. There is pervasive misuse of the electoral process and the electoral systemis unable to prevent the entry of persons with criminal record into theportal of law-making institutions.8. The Parliament and the State Legislatures, owing to the inherent weaknessof the electoral system, have failed to acquire adequate representativecharacter. The 13th Lok Sabha represents only 27.9 per cent of the totalelectorate and the Legislature of U.P. represents only 22.2 per cent ofelectorate respectively.9. The increasing instability of the elected governments is attributable toopportunistic politics and unprincipled defections. The economic andadministrative costs of political instability are unaffordably high and theirimpact on the polity is not clearly comprehended and realized. Thoughjust four Prime Ministers ruled the country for 40 years out of the 54years of independence and one political party alone was in power for 45years, however, 1989 onwards the country saw five General Elections tothe Lok Sabha. Costs of this political instability are simply colossal.10. The state of the Indian economy is disturbing. The economy is graduallysinking into a debt-trap. Economic, fiscal and monetary policies, coupledwith administrative inefficiency, corruption and wasteful expenditure areincreasingly pushing the society into extra-legal systems, crimesyndicates,mob-rule and hoodlum out-fits. Black-money, paralleleconomy and even parallel governments are the overarching economic andsocial realities. Legitimate governments will, in due course, find itincreasingly difficult to confront them. In course of time these illegalcriminal out-fits will dictate terms to the legitimate governments.11. Rural de-population, urbanization, urban-congestion and social unrestneed immediate attention and solutions. Increasing unemployment willprove a serious threat to orderly government.12. Future of society is increasingly knowledge-based and knowledge-driven.The quality of education and the higher research need urgent repair. Thecountry is engaged in a unilateral and unthinking educationaldisarmament.13. System of administration of justice in the country is another area ofconcern.14. Criminal justice system is on the verge of collapse. The quality ofwww.freeupscmaterials.orginvestigations and prosecutions requires a strong second look. Law's delayand costs of litigation have become proverbial. Victimology, victimprotectionand protection of witnesses in sensitive criminal-trials needinstitutional arrangements. Recruitment, training, refresher and continuinglegal education for lawyers, judges and judicial administrators needimmediate attention. The increasing utilization of alternative disputeresolution mechanisms such as mediation, conciliation and arbitration aswell as mechanisms of auxiliary adjudicative services need to be stressed.15. Communal and other inter-group riots in a country like India with itsreligious, social and cultural diversity cannot be treated as merely law andorder problem. They are manifestations of collective behaviouraldisorders. Legal and administrative measures are required to be taken toremove the insecurity felt by the minorities and for bringing them into themainstream of the national fabric.16. The state of social infrastructure is disturbing. There are 380 millionchildren below the age of 14. The arrangements for their education, healthand well-being are wholly inadequate both qualitatively andquantitatively. 96.4 per cent of the primary education budget goes forsalaries alone.17. Rates of infant mortality, blindness, maternal mortality, maternal-anemia,child malnutrition and child-immunization, despite significant progressachieved, yet remain at high and disconcerting levels.18. Public health and hygiene have not received adequate attention. There isalarming increase of infectious diseases such as Tuberculosis, Malaria,Hepatitis, HIV etc.
IV. RECOMMENDATIONS OF THE COMMISSION- National Commission to Review the Working of the Constitution -1. on fundamental rights
In all, the commission made 249 recommendations. Of them, 58recommendations involve amendments to the Constitution, 86 involvelegislative measures and the remaining 105 recommendations could beaccomplished through executive action.The various recommendations of the commission are mentioned below inan area-wise manner7:www.freeupscmaterials.org1. On Fundamental Rights1. The scope of prohibition against discrimination (under Articles 15 and 16)should be extended to include 'ethnic or social origin, political or otheropinion, property or birth'.2. The freedom of speech and expression (under Article 19) should beexpanded to include explicitly 'the freedom of the press and other media,the freedom to hold opinions and to seek, receive and impart informationand ideas'.3. The following should be added as new Fundamental Rights:(a) Right against torture, cruelty and inhuman treatment or punishment.(b) Right to compensation if a person is illegally deprived of his right tolife or liberty.(c) Right to leave and to return to India.(d) Right to privacy and family life.(e) Right to rural wage employment for a minimum of 80 days in a year.(f) Right to access to courts and tribunals and speedy justice.(g) Right to equal justice and free legal aid8.(h) Right to care and assistance and protection (in case of children).(i) Right to safe drinking water, prevention of pollution, conservation ofecology and sustainable development.4. The right to education (under Article 21-A) should be enlarged to read as:'Every child shall have the right to free education until he completes theage of fourteen years; and in the case of girls and members of the SCs andSTs until they complete the age of eighteen years'.5. Two changes should be made with respect to preventive detention (underArticle 22), namely, (i) the maximum period of preventive detentionshould be six months; and (ii) the advisory board should consist of achairman and two other members and they should be serving judges ofany high court.6. Sikhism, Jainism and Buddhism should be treated as religions separatefrom Hinduism and the provisions grouping them together (under Article25) should be deleted. At present, the word 'Hindu' is defined to includethese religions also.7. The protection from judicial review afforded by Article 31-B to the Actsand Regulations specified in the Ninth Schedule should be restricted towww.freeupscmaterials.orgonly those which relate to (i) agrarian reforms, (ii) reservations, and(iii) the implementation of Directive Principles specified in clause (b) or(c) of Article 39.8. No suspension of the enforcement of the Fundamental Rights underArticles 17, 23, 24, 25 and 32 in addition to those under Articles 20 and21 during the operation of a national emergency (under Article 352).
2. On Right to Property- RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution
Article 300-A should be recast as follows:1. Deprivation or acquisition of property shall be by authority of law andonly for a public purpose.2. There shall be no arbitrary deprivation or acquisition of property.3. No deprivation or acquisition of agricultural, forest and non-urbanhomestead land belonging to or customarily used by the SCs and STsshall take place except by authority of law which provides for suitablerehabilitation scheme before taking possession of such land. In brief, aright to 'suitable rehabilitation' for the SCs and STs if their land is to beacquired.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution-3. On Directive Principles
1. The heading of Part-IV of the Constitution should be amended to read as'Directive Principles of State Policy and Action'.2. A new Directive Principle on control of population should be added.3. An independent National Education Commission should be set-up everyfive years.4. An Inter-Faith Commission should be established to promote interreligiousharmony and social solidarity.5. There must be a body of high status to review the level of implementationof the Directive Principles.6. A strategic Plan of Action should be initiated to create a large number ofemployment opportunities in five years.7. Implementation of the recommendations contained in the Report of theNational Statistical Commission (2001).
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution-4. On Fundamental Duties
1. Consideration should be given to the ways and means by whichFundamental Duties could be popularized and made effective.2. The recommendations of the Justice Verma Committee onoperationalisation of Fundamental Duties should be implemented at theearliest9.3. The following new fundamental duties should be included in Article 51-A:(a) Duty to vote at elections, actively participate in the democraticprocess of governance and to pay taxes.(b) To foster a spirit of family values and responsible parenthood in thematter of education, physical and moral well-being of children.(c) Duty of industrial organizations to provide education to children oftheir employees
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution- 5. On Parliament and State Legislatures
1. The privileges of legislators should be defined and delimited for the freeand independent functioning of Parliament and state legislatures.2. Article 105 may be amended to clarify that the immunity enjoyed bymembers under parliamentary privileges does not cover corrupt actscommitted by them in connection with their duties in the House orotherwise. Further, no court would take cognizance of any offence arisingout of a member's action in the House without prior sanction of theSpeaker / Chairman. Article 194 may also be similarly amended inrelation to the members of state legislatures.3. The domiciliary requirement for eligibility to contest elections to RajyaSabha from the concerned state should be maintained. This is essential toensure the federal character of the Rajya Sabha.4. The MP local area development scheme should be discontinued.5. The Election Commission should be empowered to identify and declarethe various offices under the central and state governments to be 'officesof profit' for the purposes of being chosen, and for being, a member ofthe appropriate legislature.6. Immediate steps be taken to set up a Nodal Standing Committee onwww.freeupscmaterials.orgNational Economy.7. A Standing Constitution Committee of the two Houses of Parliament for apriori scrutiny of constitutional amendment proposals should be set up.8. A new Legislation Committee of Parliament to oversee and coordinatelegislative planning should be constituted.9. The existing Parliamentary Committees on Estimates, PublicUndertakings and Subordinate Legislation may not be continued.10. The Parliamentarians must voluntarily place themselves open to publicscrutiny through a parliamentary ombudsman.11. The State Legislatures with less than 70 members should meet for at least50 days in a year and other State Legislatures for at least 90 days.Similarly, the minimum number of days for sittings of Rajya Sabha andLok Sabha should be fixed at 100 and 120 days respectively.12. A Study Group outside Parliament for study of procedural reforms shouldbe set up.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution -6. On Executive and Administration
1. In case of hung Parliament, the Lok Sabha may elect the leader of theHouse. He may then be appointed as the prime minister by the president.The same procedure could be followed at the state level also.2. A motion of no-confidence against a prime minister must be accompaniedby a proposal of alternative leader to be voted simultaneously. This iscalled as the 'system of constructive vote of no confidence'.3. For a motion of no-confidence to be brought out against the government,at least 20 per cent of the total number of members of the House shouldgive notice.4. The practice of having oversized Council of Ministers should beprohibited by law. A ceiling on the number of Ministers in any State orthe Union government be fixed at the maximum of 10 per cent of the totalstrength of the popular house of the legislature.5. The practice of creating a number of political offices with the position,perks and privileges of a minister should be discouraged. Their numbershould be limited to 2 per cent of the total strength of the lower house.6. The Constitution should provide for appointment of Lokpal keeping theprime minister outside its purview and the institution of lokayuktas in thewww.freeupscmaterials.orgstates.7. Lateral entry into government jobs above joint secretary level should beallowed.8. Article 311 should be amended to ensure not only protection to the honestpublic servants but penalisation to dishonest ones.9. The questions of personnel policy including placements, promotions,transfers and fast-track advancements should be managed by autonomousCivil Service Boards constituted under statutory provisions.10. Officials, before starting their career, in addition to the taking of an oathof loyalty to the Constitution, should swear to abide by the principles ofgood governance.11. Right to information should be guaranteed and the traditional insistenceon secrecy should be discarded. In fact, there should be an oath oftransparency in place of an oath of secrecy.12. Public Interest Disclosure Acts (which are popularly called the WhistleblowerActs) may be enacted to fight corruption and mal-administration.13. A law should be enacted to provide for forfeiture of benami property ofcorrupt public servants as well as non-public servants.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution- 7. On Centre-State and Inter-State Relations
1. The Inter-State Council Order of 1990 may clearly specify the mattersthat should form the parts of consultations.2. Management of disasters and emergencies (both natural and manmade)should be included in the List III (Concurrent List) of the SeventhSchedule.3. A statutory body called the Inter-State Trade and Commerce Commissionshould be established.4. The president should appoint the governor of a state only afterconsultation with the chief minister of that state.5. Article 356 should not be deleted, but it must be used sparingly and onlyas a remedy of the last resort.6. The question whether the ministry in a state has lost the confidence of theassembly or not should be tested only on the floor of the House. TheGovernor should not be allowed to dismiss the ministry, so long as itenjoys the confidence of the House.www.freeupscmaterials.org7. Even without the state being under a proclamation of emergency,President's Rule may be continued if elections cannot be held. Article356 should be amended to this effect.8. The State Assembly should not be dissolved before the proclamationissued under Article 356 has been laid before Parliament. Article 356should be amended to ensure this.9. River water disputes between States and / or the Centre should be heardand disposed by a bench of not less than three judges and if necessary, abench of five judges of the Supreme Court for the final disposal of thesuit.10. Parliament should replace the River Boards Act of 1956 with anothercomprehensive enactment after consultation with all the states.11. When the state bill is reserved for consideration of the President, thereshould be a time-limit (say of three months) within which the Presidentshould take a decision whether to give his assent or to return the bill.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution- 8. On Judiciary
1. A National Judicial Commission under the Constitution should beestablished to recommend the appointment of judges of the SupremeCourt. It should comprise the chief justice of India (as chairman), twosenior most Judges of the Supreme Court, the Union law minister and oneperson nominated by the president.2. A committee of the National Judicial Commission should examinecomplaints of deviant behaviour of the Supreme Court and high courtjudges.3. The retirement age of the judges of high courts and Supreme Court shouldbe increased to 65 and 68 respectively.4. No court other than the Supreme Court and the High Courts should havethe power to punish for contempt of itself.5. Except the Supreme Court and the High Courts, no other court shouldhave the power to declare the Acts of Parliament and State Legislatures asbeing unconstitutional or beyond legislative competence and so ultravires.6. A National Judicial Council and Judicial Councils in States should be setup for the preparation of plans and annual budget proposals.www.freeupscmaterials.org7. In the Supreme Court and the High Courts, judgements should ordinarilybe delivered within 90 days from the conclusion of the case.8. An award of exemplary costs should be given in appropriate cases ofabuse of process of law.9. Each High Court should prepare a strategic plan for time-bound clearanceof arrears in courts within its jurisdiction. No case to remain pending formore than one year.10. The system of plea-bargaining should be introduced as part of the processof decriminalization.11. The hierarchy of the subordinate courts in the country should be broughtdown to a two-tier of subordinate judiciary under the High Court.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution -9. On Pace of Socio-Economic Change and Development
1. A way could and should be found to bring a reasonable number of SCs,STs and BCs on to the benches of the Supreme Court and high courts.2. Social policy should aim at enabling the SCs, STs and BCs and withparticular attention to the girls to compete on equal terms with the generalcategory.3. Appropriate new institutions should be established to ensure that theresources earmarked for the weaker sections are optimally used.4. The Citizens' Charters be prepared by every service providing department/ agency to enumerate the entitlements of the citizens specifically those ofthe SCs, STs and other deprived classes.5. Reservation for SCs, STs and BCs should be brought under a statutecovering all aspects of reservation including setting up of ArakshanNyaya Adalats to adjudicate upon all disputes pertaining to reservation.6. Residential schools for SCs, STs and BCs should be established in everydistrict in the country.7. All tribal areas governed by the Fifth Schedule of the Constitution shouldbe transferred to the Sixth Schedule. Other tribal areas should also bebrought under the Sixth Schedule.8. Special courts exclusively to try offences under the SCs and STs(Prevention of Atrocities) Act, 1989, should be established.9. Prevention of untouchability requires, inter alia, effective punitive actionunder the Protection of Civil Rights Act, 1955.www.freeupscmaterials.org10. The Employment of Manual Scavengers and Construction of Dry Latrines(Prohibition) Act, 1993, should be strictly enforced.11. Steps should be taken for improvement of educational standards as wellas for increasing the political representation of the minority communities.12. A fully empowered National Authority for the Liberation andRehabilitation of bonded labour should be set up. Similar authoritiesshould also be established at the state level.13. As regards women, action covering reservation, development,empowerment, health and protection against violence should be taken.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution - 10. On Decentralisation (Panchayats and Municipalities)
1. The Eleventh and Twelfth Schedules of the Constitution should berestructured in a manner that creates a separate fiscal domain forpanchayats and municipalities.2. State panchayat council should be established under the chairmanship ofthe chief minister.3. Panchayats and Municipalities should be categorically declared to be'institutions of self-government' and exclusive functions be assigned tothem. For this purpose, Articles 243-G and 243-W should be suitablyamended.4. The Election Commission of India should have the power to issuedirections to the State Election Commission for the discharge of itsfunctions. The State Election Commission should submit its annual orspecial reports to the Election Commission of India and to the Governor.This requires the amendment of Articles 243-K and 243-ZA.5. Article 243-E should be amended to the effect that a reasonableopportunity of being heard shall be given to a Panchayat before it isdissolved.6. To ensure uniformity in the practice relating to audit of accounts, theCAG of India should be empowered to conduct the audit or lay downaccounting standards for Panchayats.7. Whenever a Municipality is superseded, a report stating the grounds forsuch dissolution should be placed before the State Legislature.8. All provisions regarding qualifications and disqualifications for electionsto local authorities should be consolidated in a single law.www.freeupscmaterials.org9. The functions of delimitation, reservation and rotation of seats should bevested in a Delimitation Commission and not in the State ElectionCommission.10. The concept of a distinct and separate tax domain for municipalitiesshould be recognized.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution- 11. On Institutions in North East India
1. Efforts are to be made to give all the States in this region the opportunitiesprovided under the 73rd and 74th Constitutional Amendments. However,this should be done with due regard to the unique political traditions ofthe region.2. The subjects given under the Sixth Schedule and those mentioned in theEleventh Schedule could be entrusted to the Autonomous DistrictCouncils (ADCs).3. Traditional forms of governance should be associated with selfgovernancebecause of the present dissatisfaction.4. A National Immigration Council should be set up to examine a range ofissues including review of the Citizenship Act, the Illegal MigrantsDetermination by Tribunal Act, the Foreigners Act and so on.5. As regards Nagaland, the Naga Councils should be replaced by electedrepresentatives of various Naga society groups with an intermediary tierat the district level.6. As regards Assam, the Sixth Schedule should be extended to theBodoland Autonomous Council and other Autonomous Councils beupgraded to Autonomous Development Councils.7. As regards Meghalaya, a tier of village governance should be created for avillage or a group of villages in the Autonomous District Councils.8. As regards Tripura, the changes which may be made in respect of otherAutonomous Councils should also apply in respect of the AutonomousDistrict Councils.9. As regards Mizoram, an intermediary elected tier should be developed atthe district level in areas not covered by the Sixth Schedule.10. As regards Manipur, the provisions of the Sixth Schedule should beextended to hill districts of the State.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution -12. On Electoral Processes
1. Any person charged with any offence punishable with imprisonment for amaximum term of five years or more, should be disqualified for beingchosen as or for being a member of Parliament or Legislature of a State.2. Any person convicted for any heinous crime like murder, rape,smuggling, dacoity, etc., should be permanently debarred from contestingfor any political office.3. Criminal cases against politicians pending before Courts either for trial orin appeal must be disposed of speedily, if necessary, by appointingSpecial Courts.4. The election petitions should also be decided by special courts. In thealternative, special election benches may be constituted in the HighCourts and earmarked exclusively for the disposal of election petitionsand election disputes.5. Any system of State funding of elections bears a close nexus to theregulation of working of political parties by law and to the creation of afoolproof mechanism under law with a view to implementing thefinancial limits strictly. Therefore, proposals for State funding should bedeferred till these regulatory mechanisms are firmly in position.6. Candidates should not be allowed to contest election simultaneously forthe same office from more than one constituency.7. The election code of conduct should be given the sanctity of law and itsviolation should attract penal action.8. The Commission while recognizing the beneficial potential of the systemof run off contest electing the representative winning on the basis of 50per cent plus one vote polled, as against the present first-past-the-postsystem, for a more representative democracy, recommends that theGovernment and the Election Commission of India should examine thisissue of prescribing a minimum of 50 per cent plus one vote for electionin all its aspects.9. An independent candidate who loses election three times consecutivelyshould be permanently debarred from contesting election to the sameoffice.10. The minimum number of valid votes polled should be increased to 25 percent from the current 16.67 per cent as a condition for the deposit notwww.freeupscmaterials.orgbeing forfeited.11. The issue of eligibility of non-Indian born citizens or those whose parentsor grandparents were citizens of India to hold high offices in the realmsuch as President, Vice-President, Prime Minister and Chief Justice ofIndia should be examined in depth through a political process after anational dialogue10.12. The Chief Election Commissioner and the other Election Commissionersshould be appointed on the recommendation of a body consisting of thePrime Minister, Leader of the Opposition in the Lok Sabha, Leader of theOpposition in the Rajya Sabha, the Speaker of the Lok Sabha and theDeputy Chairman of the Rajya Sabha. Similar procedure should beadopted in the case of appointment of State Election Commissioners.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution- 13. On Political Parties
1. A comprehensive law regulating the registration and functioning ofpolitical parties or alliances of parties should be made. The proposed lawshould-(a) provide that political party or alliance should keep its doors open toall citizens irrespective of any distinctions of caste, community or thelike.(b) make it compulsory for the parties to maintain accounts of the receiptof funds and expenditure in a systematic and regular way.(c) make it compulsory for the political parties requiring their candidatesto declare their assets and liabilities at the time of filing theirnomination.(d) provide that no political party should provide ticket to a candidate ifhe was convicted by any court for any criminal offence or if the courtshave framed criminal charges against him.(e) specifically provide that if any party violates the above provision , thecandidate involved should be liable to be disqualified and the partyderegistered and derecognized.2. The Election Commission should progressively increase the thresholdcriterion for eligibility for recognition so that the proliferation of smallerpolitical parties is discouraged.3. A comprehensive legislation providing for regulation of contributions towww.freeupscmaterials.orgthe political parties and towards election expenses should be enacted byconsolidating such laws. This new law should:(a) aim at bringing transparency into political funding;(b) permit corporate donations within higher prescribed limits;(c) make donations up to a specified limit tax exempt;(d) make both donors and donees of political funds accountable;(e) provide that audited political party accounts should be publishedyearly; and(f) provide for de-recognition of the party and enforcement of penaltiesfor filing false election returns.
RECOMMENDATIONS OF THE National Commission to Review the Working of the Constitution-- 14. On Anti-Defection Law
The provisions of the Tenth Schedule of the Constitution should be amendedto provide the following:1. All persons defecting (whether individually or in groups) from the partyor the alliance of parties, on whose ticket they had been elected, mustresign from their parliamentary or assembly seats and must contest freshelections.2. The defectors should be debarred to hold any public office of a minister orany other remunerative political post for at least the duration of theremaining term of the existing legislature or until the next electionswhichever is earlier.3. The vote cast by a defector to topple a government should be treated asinvalid.4. The power to decide questions regarding disqualification on ground ofdefection should vest in the Election Commission instead of in theSpeaker / Chairman of the House concerned.
NOTES AND REFERENCES - national commission to review working of constitution
1. The Ministry of Law and Justice (Department of Legal Affairs), vide itsResolution, dated the 22 February, 2000.2. The other members of the Commission were: B.P. Jeevan Reddy(Chairman of the Law Commission), R.S. Sarkaria (former judge of theSupreme Court), K. Punnayya (former judge of the Andhra Pradesh Highwww.freeupscmaterials.orgCourt), Soli Sorabjee (Attorney-General of India), K. Parasaran (formerAttorney-General of India), Subhash Kashyap (former Secretary-Generalof Lok Sabha), C.R. Irani (Chief Editor and MD of the Statesman), AbidHussain (former Ambassador of India to the USA), Smt. SumitraKulkarni (former MP) and P.A. Sangma (former Speaker of the LokSabha). P.A. Sangma resigned three months before the submission of thereport by the Commission.3. The Commission was asked to complete its work and makerecommendations within one year. After three extensions, theCommission submitted its report on March 31, 2002. This report is abulky one, containing 1,979 pages in two-volumes. Volume I contains itsrecommendations while Volume II (divided in Books 1, 2 and 3) consistsof detailed consultation papers, background papers, details ofdeliberations and the report of its drafting and editorial committee9. The Government of India appointed the committee "to operationalise thesuggestions to teach Fundamental Duties to the citizens of India" in theyear 1998 under the chairmanship of Justice J.S. Verma. The Committeesubmitted its report in October 1999.10. The Commission was deeply divided on this issue and because of this,P.A. Sangma left the Commission
Salient Features of the Constitution - Intro
The Indian Constitution is unique in its contents and spirit. Thoughborrowed from almost every constitution of the world, the constitutionof India has several salient features that distinguish it from the constitutionsof other countries.It should be noted at the outset that a number of original features of theConstitution (as adopted in 1949) have undergone a substantial change, onaccount of several amendments, particularly 7th, 42nd, 44th, 73rd, 74th and97th Amendments. In fact, the 42nd Amendment Act (1976) is known as'Mini-Constitution' due to the important and large number of changes madeby it in various parts of the Constitution. However, in the KesavanandaBharati case1 (1973), the Supreme Court ruled that the constituent power ofParliament under Article 368 does not enable it to alter the 'basic structure'of the Constitution.
The salient features of the Constitution, as it stands today, are as follows:
1. Lengthiest Written Constitution2. Drawn From Various Sources3. Blend of Rigidity and Flexibility4. Federal System with Unitary Bias5. Parliamentary Form of Government6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy7. Integrated and Independent Judiciary8. Fundamental Rights9. Directive Principles of State Policy10. Fundamental Duties11. A Secular State12. Universal Adult Franchise13. Single Citizenship14. Independent Bodies15. Emergency Provisions16. Three-tier Government17. Co-operative Societies
Table 3.2 Important Articles of the Constitution at a Glance
Articles Deals with1 Name and territory of the Union3 Formation of new states and alteration of areas, boundaries ornames of existing stateswww.freeupscmaterials.org13 Laws inconsistent with or in derogation of the fundamental rights14 Equality before law16 Equality of opportunity in matters of public employment17 Abolition of untouchability19 Protection of certain rights regarding freedom of speech, etc.21 Protection of life and personal liberty21A Right to elementary education25 Freedom of conscience and free profession, practice andpropagation of religion30 Right of minorities to establish and administer educationalinstitutions31C Saving of laws giving effect to certain directive principles32 Remedies for enforcement of fundamental rights including writs38 State to secure a social order for the promotion of welfare of thepeople40 Organisation of village panchayats44 Uniform civil code for the citizens45 Provision for early childhood care and education to childrenbelow the age of 6 years.46 Promotion of educational and economic interests of scheduledcastes, scheduled tribes and other weaker sections50 Separation of judiciary from executive51 Promotion of international peace and security51A Fundamental duties72 Power of president to grant pardons, etc., and to suspend, remit orcommute sentences in certain caseswww.freeupscmaterials.org74 Council of ministers to aid and advise the president78 Duties of prime minister as respects the furnishing of informationto the president, etc.110 Definition of Money Bills112 Annual financial statement (Budget)123 Power of president to promulgate ordinances during recess ofParliament143 Power of president to consult Supreme Court155 Appointment of governor161 Power of governor to grant pardons, etc., and to suspend, remit orcommute sentences in certain cases163 Council of ministers to aid and advise the governor167 Duties of chief minister with regard to the furnishing ofinformation to governor, etc.169 Abolition or creation of legislative councils in states200 Assent to bills by governor (including reservation for President)213 Power of governor to promulgate ordinances during recess of thestate legislature226 Power of high courts to issue certain writs239AA Special provisions with respect to Delhi249 Power of Parliament to legislate with respect to a matter in theState List in the national interest262 Adjudication of disputes relating to waters of inter-state rivers orriver valleys263 Provisions with respect to an inter-state council265 Taxes not to be imposed save by authority of lawwww.freeupscmaterials.org275 Grants from the Union to certain states280 Finance Commission300 Suits and proceedings300A Persons not to be deprived of property save by authority of law(Right to property)311 Dismissal, removal or reduction in rank of persons employed incivil capacities under the Union or a state.312 All-India Services315 Public service commissions for the Union and for the states320 Functions of Public service commissions323-A Administrative tribunals324 Superintendence, direction and control of elections to be vested inan Election Commission330 Reservation of seats for scheduled castes and scheduled tribes inthe House of the People335 Claims of scheduled castes and scheduled tribes to services andposts352 Proclamation of Emergency (National Emergency)356 Provisions in case of failure of constitutional machinery in states(President's Rule)360 Provisions as to financial emergency.365 Effect of failure to comply with, or to give effect to, directionsgiven by the Union (President's Rule)368 Power of Parliament to amend the Constitution and proceduretherefor370Temporary provisions with respect to the state of Jammu andwww.freeupscmaterials.orgKashmir
Table 3.3 Schedules of the Constitution at a Glance
Numbers Subject Matter ArticlesCoveredFirstSchedule 1. Names of the States and their territorial jurisdiction. 1 and 42. Names of the Union Territories and their extent.SecondScheduleProvisions relating to the emoluments, allowances,privileges and so on of:59, 65,75, 97,125,148,158,164,186 &2211. The President of India2. The Governors of States3. The Speaker and the Deputy Speaker of the LokSabha4. The Chairman and the Deputy Chairman of theRajya Sabha5. The Speaker and the Deputy Speaker of theLegislative Assembly in the states6. The Chairman and the Deputy Chairman of theLegislative Council in the states7. The Judges of the Supreme Court8. The Judges of the High Courtswww.freeupscmaterials.org9. The Comptroller and Auditor-General of IndiaThirdSchedule Forms of Oaths or Affirmations for:75, 84,99, 124,146,173,188 and2191. The Union ministers2. The candidates for election to the Parliament3. The members of Parliament4. The judges of the Supreme Court5. The Comptroller and Auditor-General of India6. The state ministers7. The candidates for election to the state legislature8. The members of the state legislature9. The judges of the High CourtsFourthScheduleAllocation of seats in the Rajya Sabha to the states andthe union territories.4 and80FifthScheduleProvisions relating to the administration and control ofscheduled areas and scheduled tribes. 244SixthScheduleProvisions relating to the administration of tribal areasin the states of Assam, Meghalaya, Tripura andMizoram.244 and275SeventhScheduleDivision of powers between the Union and the Statesin terms of List I (Union List), List II (State List) andList III (Concurrent List). Presently, the Union Listcontains 100 subjects (originally 97), the state listcontains 61 subjects (originally 66) and the concurrentlist contains 52 subjects (originally 47).246www.freeupscmaterials.orgEighthScheduleLanguages recognized by the Constitution. Originally,it had 14 languages but presently there are 22languages. They are: Assamese, Bengali, Bodo, Dogri(Dongri), Gujarati, Hindi, Kannada, Kashmiri,Konkani, Mathili (Maithili), Malayalam, Manipuri,Marathi, Nepali, Odia, Punjabi, Sanskrit, Santhali,Sindhi, Tamil, Telugu and Urdu. Sindhi was added bythe 21st Amendment Act of 1967; Konkani, Manipuriand Nepali were added by the 71st Amendment Act of1992; and Bodo, Dongri, Maithili and Santhali wereadded by the 92nd Amendment Act of 2003. Oriya wasrenamed as 'Odia' by the 96th Amendment Act of2011.344 and351NinthScheduleActs and Regulations (originally 13 but presently282)19 of the state legislatures dealing with landreforms and abolition of the zamindari system and ofthe Parliament dealing with other matters. Thisschedule was added by the 1st Amendment (1951) toprotect the laws included in it from judicial scrutinyon the ground of violation of fundamental rights.However, in 2007, the Supreme Court ruled that thelaws included in this schedule after April 24, 1973, arenow open to judicial review.31-BTenthScheduleProvisions relating to disqualification of the membersof Parliament and State Legislatures on the ground ofdefection. This schedule was added by the 52ndAmendment Act of 1985, also known as AntidefectionLaw.102 and191EleventhScheduleSpecifies the powers, authority and responsibilities ofPanchayats. It has 29 matters. This schedule wasadded by the 73rd Amendment Act of 1992.243-GSpecifies the powers, authority and responsibilities ofwww.freeupscmaterials.orgTwelfthScheduleMunicipalities. It has 18 matters. This schedule wasadded by the 74th Amendment Act of 1992
Table 3.4 Sources of the Constitution at a Glance
Sources Features Borrowed1.Governmentof India Actof 1935Federal Scheme, Office of governor, Judiciary, PublicService Commissions, Emergency provisions andadministrative details.2. BritishConstitutionParliamentary government, Rule of Law, legislativeprocedure, single citizenship, cabinet system,prerogative writs, parliamentary privileges andbicameralism.3. USConstitutionFundamental rights, independence of judiciary, judicialreview, impeachment of the president, removal ofSupreme Court and high court judges and post of vicepresident.4. IrishConstitutionDirective Principles of State Policy, nomination ofmembers to Rajya Sabha and method of election ofpresident.5. CanadianConstitutionFederation with a strong Centre, vesting of residuarypowers in the Centre, appointment of state governors bythe Centre, and advisory jurisdiction of the SupremeCourt.6. AustralianConstitutionConcurrent List, freedom of trade, commerce and intercourse,and joint sitting of the two Houses of Parliament.7.WeimarConstitutionof GermanySuspension of Fundamental Rights during Emergency.SovietConstitution Fundamental duties and the ideal of justice (social,www.freeupscmaterials.org8. (USSR, nowRussia)economic and political) in the Preamble.9. FrenchConstitutionRepublic and the ideals of liberty, equality and fraternityin the Preamble.10.SouthAfricanConstitutionProcedure for amendment of the Constitution andelection of members of Rajya Sabha.11. JapaneseConstitution Procedure established by Law.
The salient features of the Constitution, as it stands today, are as follows:1. Lengthiest Written Constitution
Constitutions are classified into written, like the American Constitution, orunwritten, like the British Constitution. The Constitution of India is thelengthiest of all the written constitutions of the world. It is a verycomprehensive, elaborate and detailed document.Originally (1949), the Constitution contained a Preamble, 395 Articles(divided into 22 Parts) and 8 Schedules. Presently (2016), it consists of aPreamble, about 465 Articles (divided into 25 Parts) and 12 Schedules2. Thevarious amendments carried out since 1951 have deleted about 20 Articlesand one Part (VII) and added about 90 Articles, four Parts (IVA, IXA, IXBand XIVA) and four Schedules (9, 10, 11 and 12). No other Constitution inthe world has so many Articles and Schedules3.Four factors have contributed to the elephantine size of our Constitution.They are:(a) Geographical factors, that is, the vastness of the country and its diversity.(b) Historical factors, e.g., the influence of the Government of India Act of1935, which was bulky.(c) Single Constitution for both the Centre and the states except Jammu andKashmir4.(d) Dominance of legal luminaries in the Constituent Assembly.The Constitution contains not only the fundamental principles ofgovernance but also detailed administrative provisions. Further, those matterswhich in other modern democratic countries have been left to the ordinarylegislation or established political conventions have also been included in theconstitutional document itself in India.
The salient features of the Constitution, as it stands today, are as follows:2. Drawn From Various Sources
The Constitution of India has borrowed most of its provisions from theconstitutions of various other countries as well as from the Government ofIndia Act5 of 1935. Dr B R Ambedkar proudly acclaimed that theConstitution of India has been framed after 'ransacking all the knownConstitutions of the World6'.The structural part of the Constitution is, to a large extent, derived from theGovernment of India Act of 1935. The philosophical part of the Constitutionwww.freeupscmaterials.org(the Fundamental Rights and the Directive Principles of State Policy) derivetheir inspiration from the American and Irish Constitutions respectively. Thepolitical part of the Constitution (the principle of Cabinet Government andthe relations between the executive and the legislature) have been largelydrawn from the British Constitution7.The other provisions of the Constitution have been drawn from theconstitutions of Canada, Australia, Germany, USSR (now Russia), France,South Africa, Japan, and so on8.The most profound influence and material source of the Constitution is theGovernment of India Act, 1935. The Federal Scheme, Judiciary, Governors,emergency powers, the Public Service Commissions and most of theadministrative details are drawn from this Act. More than half of theprovisions of Constitution are identical to or bear a close resemblance to theAct of 19359.
The salient features of the Constitution, as it stands today, are as follows:3. Blend of Rigidity and Flexibility
Constitutions are also classified into rigid and flexible. A rigid Constitution isone that requires a special procedure for its amendment, as for example, theAmerican Constitution. A flexible constitution, on the other hand, is one thatcan be amended in the same manner as the ordinary laws are made, as forexample, the British Constitution.The Constitution of India is neither rigid nor flexible but a synthesis ofboth. Article 368 provides for two types of amendments:(a) Some provisions can be amended by a special majority of the Parliament,i.e., a two-third majority of the members of each House present andvoting, and a majority (that is, more than 50 per cent), of the totalmembership of each House.(b) Some other provisions can be amended by a special majority of theParliament and with the ratification by half of the total states.At the same time, some provisions of the Constitution can be amended bya simple majority of the Parliament in the manner of ordinary legislativeprocess. Notably, these amendments do not come under Article 368.
The salient features of the Constitution, as it stands today, are as follows:4. Federal System with Unitary Bias
The Constitution of India establishes a federal system of government. Itcontains all the usual features of a federation, viz., two government, divisionof powers, written Constitution, supermacy of Constitution, rigidity ofConstitution, independent judiciary and bicameralism.However, the Indian Constitution also contains a large number of unitaryor non-federal features, viz., a strong Centre, single Constitution, singlecitizenship, flexibility of Constitution, integrated judiciary, appointment ofstate governor by the Centre, all-India services, emergency provisions, and soon.Moreover, the term 'Federation' has nowhere been used in theConstitution. Article 1, on the other hand, describes India as a 'Union ofStates' which implies two things: one, Indian Federation is not the result ofan agreement by the states; and two, no state has the right to secede from thefederation.Hence, the Indian Constitution has been variously described as 'federal inform but unitary in spirit', 'quasi-federal' by K C Wheare, 'bargainingfederalism' by Morris Jones, 'co-operative federalism' by Granville Austin,'federation with a centralising tendency' by Ivor Jennings, and so on.
The salient features of the Constitution, as it stands today, are as follows:5. Parliamentary Form of Government
The Constitution of India has opted for the British parliamentary System ofGovernment rather than American Presidential System of Government. Theparliamentary system is based on the principle of cooperation and coordinationbetween the legislative and executive organs while the presidentialsystem is based on the doctrine of separation of powers between the twoorgans.The parliamentary system is also known as the 'Westminster'10 model ofgovernment, responsible government and cabinet government. TheConstitution establishes the parliamentary system not only at the Centre butalso in the states. The features of parliamentary government in India are:(a) Presence of nominal and real executives;(b) Majority party rule,www.freeupscmaterials.org(c) Collective responsibility of the executive to the legislature,(d) Membership of the ministers in the legislature,(e) Leadership of the prime minister or the chief minister,(f) Dissolution of the lower House (Lok Sabha or Assembly).Even though the Indian Parliamentary System is largely based on theBritish pattern, there are some fundamental differences between the two. Forexample, the Indian Parliament is not a sovereign body like the BritishParliament. Further, the Indian State has an elected head (republic) while theBritish State has hereditary head (monarchy).In a parliamentary system whether in India or Britain, the role of the PrimeMinister has become so significant and crucial that the political scientists liketo call it a 'Prime Ministerial Government'.
The salient features of the Constitution, as it stands today, are as follows:6. Synthesis of Parliamentary Sovereignty and JudicialSupremacy
The doctrine of sovereignty of Parliament is associated with the BritishParliament while the principle of judicial supremacy with that of theAmerican Supreme Court.Just as the Indian parliamentary system differs from the British system, thescope of judicial review power of the Supreme Court in India is narrowerthan that of what exists in US. This is because the American Constitutionprovides for 'due process of law' against that of 'procedure established bylaw' contained in the Indian Constitution (Article 21).Therefore, the framers of the Indian Constitution have preferred a propersynthesis between the British principle of parliamentary sovereignty and theAmerican principle of judicial supremacy. The Supreme Court, on the onehand, can declare the parliamentary laws as unconstitutional through itspower of judicial review. The Parliament, on the other hand, can amend themajor portion of the Constitution through its constituent power.
The salient features of the Constitution, as it stands today, are as follows:7. Integrated and Independent Judiciary
The Indian Constitution establishes a judicial system that is integrated as wellas independent.www.freeupscmaterials.orgThe Supreme Court stands at the top of the integrated judicial system in thecountry. Below it, there are high courts at the state level. Under a high court,there is a hierarchy of subordinate courts, that is, district courts and otherlower courts. This single system of courts enforces both the central laws aswell as the state laws, unlike in USA, where the federal laws are enforced bythe federal judiciary and the state laws are enforced by the state judiciary.The Supreme Court is a federal court, the highest court of appeal, theguarantor of the fundamental rights of the citizens and the guardian of theConstitution. Hence, the Constitution has made various provisions to ensureits independenceâsecurity of tenure of the judges, fixed service conditionsfor the judges, all the expenses of the Supreme Court charged on theConsolidated Fund of India, prohibition on discussion on the conduct ofjudges in the legislatures, ban on practice after retirement, power to punishfor its contempt vested in the Supreme Court, separation of the judiciary fromthe executive, and so on.
The salient features of the Constitution, as it stands today, are as follows:8. Fundamental Rights
Part III of the Indian Constitution guarantees six11 fundamental rights to allthe citizens:(a) Right to Equality (Articles 14-18),(b) Right to Freedom (Articles 19-22),(c) Right against Exploitation (Articles 23-24),(d) Right to Freedom of Religion (Articles25-28),(e) Cultural and Educational Rights (Articles 29-30), and(f) Right to Constitutional Remedies (Article 32).The Fundamental Rights are meant for promoting the idea of politicaldemocracy. They operate as limitations on the tyranny of the executive andarbitrary laws of the legislature. They are justiciable in nature, that is, theyare enforceable by the courts for their violation. The aggrieved person candirectly go to the Supreme Court which can issue the writs of habeas corpus,mandamus, prohibition, certiorari and quo warranto for the restoration of hisrights.However, the Fundamental Rights are not absolute and subject toreasonable restrictions. Further, they are not sacrosanct and can be curtailedwww.freeupscmaterials.orgor repealed by the Parliament through a constitutional amendment act. Theycan also be suspended during the operation of a National Emergency exceptthe rights guaranteed by Articles 20 and 21.
The salient features of the Constitution, as it stands today, are as follows:9. Directive Principles of State Policy
According to Dr B R Ambedkar, the Directive Principles of State Policy is a'novel feature' of the Indian Constitution. They are enumerated in Part IV ofthe Constitution. They can be classified into three broad categoriesâsocialistic, Gandhian and liberal-intellectual.The directive principles are meant for promoting the ideal of social andeconomic democracy. They seek to establish a 'welfare state' in India.However, unlike the Fundamental Rights, the directives are non-justiciable innature, that is, they are not enforceable by the courts for their violation. Yet,the Constitution itself declares that 'these principles are fundamental in thegovernance of the country and it shall be the duty of the state to apply theseprinciples in making laws'. Hence, they impose a moral obligation on thestate authorities for their application. But, the real force (sanction) behindthem is political, that is, public opinion.In the Minerva Mills case12 (1980), the Supreme Court held that 'theIndian Constitution is founded on the bedrock of the balance between theFundamental Rights and the Directive Principles'
The salient features of the Constitution, as it stands today, are as follows:10. Fundamental Duties
The original constitution did not provide for the fundamental duties of thecitizens. These were added during the operation of internal emergency(1975-77) by the 42nd Constitutional Amendment Act of 1976 on therecommendation of the Swaran Singh Committee. The 86th ConstitutionalAmendment Act of 2002 added one more fundamental duty.The Part IV-A of the Constitution (which consists of only one Articleâ51-A) specifies the eleven Fundamental Duties viz., to respect the Constitution,national flag and national anthem; to protect the sovereignty, unity andintegrity of the country; to promote the spirit of common brotherhoodamongst all the people; to preserve the rich heritage of our composite culturewww.freeupscmaterials.organd so on.The fundamental duties serve as a reminder to citizens that while enjoyingtheir rights, they have also to be quite conscious of duties they owe to theircountry, their society and to their fellow-citizens. However, like the DirectivePrinciples, the duties are also non-justiciable in nature.
The salient features of the Constitution, as it stands today, are as follows:11. A Secular State
The Constitution of India stands for a secular state. Hence, it does not upholdany particular religion as the official religion of the Indian State. Thefollowing provisions of the Constitution reveal the secular character of theIndian State:(a) The term 'secular' was added to the Preamble of the Indian Constitutionby the 42nd Constitutional Amendment Act of 1976.(b) The Preamble secures to all citizens of India liberty of belief, faith andworship.(c) The State shall not deny to any person equality before the law or equalprotection of the laws (Article 14).(d) The State shall not discriminate against any citizen on the ground ofreligion (Article 15).(e) Equality of opportunity for all citizens in matters of public employment(Article 16).(f) All persons are equally entitled to freedom of conscience and the right tofreely profess, practice and propagate any religion (Article 25).(g) Every religious denomination or any of its section shall have the right tomanage its religious affairs (Article 26).(h) No person shall be compelled to pay any taxes for the promotion of aparticular religion (Article 27).(i) No religious instruction shall be provided in any educational institutionmaintained by the State (Article 28).(j) Any section of the citizens shall have the right to conserve its distinctlanguage, script or culture (Article 29).(k) All minorities shall have the right to establish and administer educationalinstitutions of their choice (Article 30).(l) The State shall endeavour to secure for all the citizens a Uniform Civilwww.freeupscmaterials.orgCode (Article 44).The Western concept of secularism connotes a complete separationbetween the religion (the church) and the state (the politics). This negativeconcept of secularism is inapplicable in the Indian situation where the societyis multireligious. Hence, the Indian Constitution embodies the positiveconcept of secularism, i.e., giving equal respect to all religions or protectingall religions equally.Moreover, the Constitution has also abolished the old system of communalrepresentation13, that is, reservation of seats in the legislatures on the basis ofreligion. However, it provides for the temporary reservation of seats for thescheduled castes and scheduled tribes to ensure adequate representation tothem.
The salient features of the Constitution, as it stands today, are as follows:12. Universal Adult Franchise
The Indian Constitution adopts universal adult franchise as a basis ofelections to the Lok Sabha and the state legislative assemblies. Every citizenwho is not less than 18 years of age has a right to vote without anydiscrimination of caste, race, religion, sex, literacy, wealth, and so on. Thevoting age was reduced to 18 years from 21 years in 1989 by the 61stConstitutional Amendment Act of 1988.The introduction of universal adult franchise by the Constitution-makerswas a bold experiment and highly remarkable in view of the vast size of thecountry, its huge population, high poverty, social inequality andoverwhelming illiteracy.14Universal adult franchise makes democracy broad-based, enhances theself-respect and prestige of the common people, upholds the principle ofequality, enables minorities to protect their interests and opens up new hopesand vistas for weaker sections.
The salient features of the Constitution, as it stands today, are as follows:13. Single Citizenship
Though the Indian Constitution is federal and envisages a dual polity (Centreand states), it provides for only a single citizenship, that is, the Indiancitizenship.www.freeupscmaterials.orgIn countries like USA, on the other hand, each person is not only a citizenof USA but also a citizen of the particular state to which he belongs. Thus, heowes allegiance to both and enjoys dual sets of rightsâone conferred by theNational government and another by the state government.In India, all citizens irrespective of the state in which they are born orreside enjoy the same political and civil rights of citizenship all over thecountry and no discrimination is made between them excepting in few caseslike tribal areas, Jammu and Kashmir, and so on.Despite the constitutional provision for a single citizenship and uniformrights for all the people, India has been witnessing the communal riots, classconflicts, caste wars, linguistic clashes and ethnic disputes. This means thatthe cherished goal of the Constitution-makers to build an united andintegrated Indian nation has not been fully realised.
The salient features of the Constitution, as it stands today, are as follows:14. Independent Bodies
The Indian Constitution not only provides for the legislative, executive andjudicial organs of the government (Central and state) but also establishescertain independent bodies. They are envisaged by the Constitution as thebulworks of the democratic system of Government in India. These are:(a) Election Commission to ensure free and fair elections to the Parliament,the state legislatures, the office of President of India and the office ofVice-president of India.(b) Comptroller and Auditor-General of India to audit the accounts of theCentral and state governments. He acts as the guardian of public purse andcomments on the legality and propriety of government expenditure.(c) Union Public Service Commission to conduct examinations forrecruitment to all-India services15 and higher Central services and toadvise the President on disciplinary matters.(d) State Public Service Commission in every state to conduct examinationsfor recruitment to state services and to advice the governor on disciplinarymatters.The Constitution ensures the independence of these bodies through variousprovisions like security of tenure, fixed service conditions, expenses beingcharged on the Consolidated Fund of India, and so on.
The salient features of the Constitution, as it stands today, are as follows:15. Emergency Provisions
The Indian Constitution contains eleborate emergency provisions to enablethe President to meet any extraordinary situation effectively. The rationalitybehind the incorporation of these provisions is to safeguard the sovereignty,unity, integrity and security of the country, the democratic political systemand the Constitution.The Constitution envisages three types of emergencies, namely:(a) National emergency on the ground of war or external aggression or armedrebellion16 (Article 352);(b) State emergency (President's Rule) on the ground of failure ofConstitutional machinery in the states (Article 356) or failure to complywith the directions of the Centre (Article 365); and(c) Financial emergency on the ground of threat to the financial stability orcredit of India (Article 360).During an emergency, the Central Government becomes all-powerful andthe states go into the total control of the centre. It converts the federalstructure into a unitary one without a formal amendment of the Constitution.This kind of transformation of the political system from federal (duringnormal times) to unitary (during emergency) is a unique feature of the IndianConstitution.
The salient features of the Constitution, as it stands today, are as follows:16. Three-tier Government
Originally, the Indian Constitution, like any other federal constitution,provided for a dual polity and contained provisions with regard to theorganisation and powers of the Centre and the states. Later, the 73rd and 74thConstitutional Amendment Acts (1992) have added a third-tier ofgovernment (i.e., local) which is not found in any other Constitution of theworld.The 73rd Amendment Act of 1992 gave constitutional recognition to thepanchayats (rural local governments) by adding a new Part IX17 and a newSchedule 11 to the Constitution. Similarly, the 74th Amendment Act of 1992gave constitutional recognition to the municipalities (urban localgovernments) by adding a new Part IX-A18 and a new Schedule 12 to thewww.freeupscmaterials.orgConstitution.
The salient features of the Constitution, as it stands today, are as follows:17. Co-operative Societies
The 97th Constitutional Amendment Act of 2011 gave a constitutional statusand protection to co-operative societies. In this context, it made the followingthree changes in the Constitution:1. It made the right to form co-operative societies a fundamental right(Article 19).2. It included a new Directive Principle of State Policy on promotion of cooperativesocieties (Article 43-B).3. It added a new Part IX-B in the Constitution which is entitled as "The CooperativeSocieties" (Articles 243-ZH to 243-ZT).The new Part IX-B contains various provisions to ensure that the cooperativesocieties in the country function in a democratic, professional,autonomous and economically sound manner. It empowers the Parliament inrespect of multi-state cooperative societies and the state legislatures in respectof other co-operative societies to make the appropriate law
The Constitution of India as framed and adopted by the Constituent Assembly of India has been criticized on the following grounds:
1. A Borrowed Constitution2. A Carbon Copy of the 1935 Act3. Un-Indian or Anti-Indian4. An Un-Gandhian Constitution5. Elephantine Size6. Paradise of the Lawyers
The Constitution of India as framed and adopted by the Constituent Assembly of India has been criticized on the following grounds: 1. A Borrowed Constitution
The critics opined that the Indian Constitution contains nothing new andoriginal. They described it as a 'borrowed constitution' or a 'bag ofborrowings' or a 'hotch-potch constitution' or a 'patchwork' of severaldocuments of the world constitutions. However, this criticism is unfair andillogical. This is because, the framers of the constitution made necessarymodifications in the features borrowed from other constitutions for theirsuitability to the Indian conditions, at the same time avoiding their faults.While answering the above criticism in the Constituent Assembly, Dr. B.R.Ambedkar, the Chairman of the Drafting Committee, said : "One likes to askwhether there can be anything new in a Constitution framed at this hour inthe history of the world. More than hundred years have rolled over when thefirst written Constitution was drafted. It has been followed by many countriesreducing their constitutions to writing. What the scope of a constitutionshould be has long been settled. Similarly, what are the fundamentals of aconstitution are recognized all over the world. Given these facts, allconstitutions in their main provisions must look similar. The only new things,if there can be any, in a constitution framed so late in the day are thevariations made to remove the faults and to accommodate it to the needs ofthe country. The charge of producing a blind copy of the constitutions ofother countries is based, I am sure, on an inadequate study of theConstitution".20
The Constitution of India as framed and adopted by the Constituent Assembly of India has been criticized on the following grounds:2. A Carbon Copy of the 1935 Act
The critics said that the framers of the constitution have included a largenumber of the provisions of the Government of India Act of 1935 into theConstitution of India. Hence, they called the constitution as a "Carbon Copyof the 1935 Act" or an "amended version of the 1935 Act". For example, N.Srinivasan observed that the Indian Constitution is "both in language andsubstance a close copy of the Act of 1935". Similarly, Sir Ivor Jennings, aBritish Constitutionalist, said that "the constitution derives directly from theGovernment of India Act of 1935 from which, in fact, many of its provisionsare copied almost textually".Further, P.R. Deshmukh, a member of the Constituent Assembly,commented that "the constitution is essentially the Government of India Actwww.freeupscmaterials.orgof 1935 with only adult franchise added".The same Dr. B.R. Ambedkar answered the above criticism in theConstituent Assembly in the following way : "As to the accusation that theDraft Constitution has reproduced a good part of the provisions of theGovernment of India Act, 1935, I make no apologies. There is nothing to beashamed of in borrowing. It involves no plagiarism. Nobody holds any patentrights in the fundamental ideas of a Constitution. What I am sorry about isthat the provisions taken from the Government of India Act, 1935, relatemostly to the details of administration".21
The Constitution of India as framed and adopted by the Constituent Assembly of India has been criticized on the following grounds:3. Un-Indian or Anti-Indian
According to the critics, the Indian Constitution is 'un-Indian' or 'anti-Indian' because it does not reflect the political traditions and the spirit ofIndia. They said that the foreign nature of the Constitution makes itunsuitable to the Indian situation or unworkable in India. In this context, K.Hanumanthaiya, a member of the Constituent Assembly, commented : "Wewanted the music of Veena or Sitar, but here we have the music of an Englishband. That was because our constitution-makers were educated that way".22Similarly, Lokanath Misra, another member of the Constituent Assembly,criticized the constitution as a "slavish imitation of the west, much more - aslavish surrender to the west".23 Further, Lakshminarayan Sahu, also amember of the Constituent Assembly, observed : "The ideals on which thisdraft constitution is framed have no manifest relation to the fundamentalspirit of India. This constitution would not prove suitable and would breakdown soon after being brought into operation".24
4. An Un-Gandhian Constitution-The Constitution of India as framed and adopted by the Constituent Assembly of India has been criticized on the following grounds
According to the critics, the Indian Constitution is Un-Gandhian because itdoes not contain the philosophy and ideals of Mahatma Gandhi, the father ofthe Indian Nation. They opined that the Constitution should have been raisedand built upon village panchayats and district panchayats. In this context, thesame member of the Constituent Assembly, K. Hanumanthaiya, said: "That isexactly the kind of Constitution Mahatma Gandhi did not want and did notenvisage".25 T. Prakasam, another member of the Constituent Assembly,www.freeupscmaterials.orgattributed this lapse to Ambedkar's non-participation in the Gandhianmovement and the antagonism towards Gandhian ideas.26
The Constitution of India as framed and adopted by the Constituent Assembly of India has been criticized on the following grounds 5. Elephantine Size
The critics stated that the Indian Constitution is too bulky and too detailedand contains some unnecessary elements. Sir Ivor Jennings, a BritishConstitutionalist, observed that the provisions borrowed were not alwayswell-selected and that the constitution, generally speaking, was too long andcomplicated.27In this context, H.V. Kamath, a member of the Constituent Assembly,commented : "The emblem and the crest that we have selected for ourassembly is an elephant. It is perhaps in consonance with that our constitutiontoo is the bulkiest that the world has produced".28 He also said : "I am sure,the House does not agree that we should make the Constitution anelephantine one".29
The Constitution of India as framed and adopted by the Constituent Assembly of India has been criticized on the following grounds 6. Paradise of the Lawyers
According to the critics, the Indian Constitution is too legalistic and verycomplicated. They opined that the legal language and phraseology adopted inthe constitution makes it a complex document. The same Sir Ivor Jenningscalled it a "lawyer's paradise".In this context, H.K. Maheswari, a member of the Constituent Assembly,observed : "The draft tends to make people more litigious, more inclined togo to law courts, less truthful and less likely to follow the methods of truthand non-violence. If I may say so, the Draft is really a lawyer's paradise. Itopens up vast avenues of litigation and will give our able and ingeniouslawyers plenty of work to do".30Similarly, P.R. Deshmukh, another member of the Constituent Assembly,said : "I should, however, like to say that the draft of the articles that havebeen brought before the House by Dr. Ambedkar seems to my mind to be fartoo ponderous like the ponderous tomes of a law manual. A documentdealing with a constitution hardly uses so much of padding and so much ofverbiage. Perhaps it is difficult for them to compose a document whichwww.freeupscmaterials.orgshould be, to my mind, not a law manual but a socio-political document, avibrating, pulsating and life-giving document. But to our misfortune, that wasnot to be, and we have been burdened with so much of words, words andwords which could have been very easily eliminated.31
UNION OF STATES
Article 1 describes India, that is, Bharat as a 'Union of States' rather than a'Federation of States'. This provision deals with two things: one, name of thecountry, and two, type of polity.There was no unanimity in the Constituent Assembly with regard to thename of the country. Some members suggested the traditional name (Bharat)while other advocated the modern name (India). Hence, the ConstituentAssembly had to adopt a mix of both ('India, that is, Bharat')Secondly, the country is described as 'Union' although its Constitution isfederal in structure. According to Dr B R Ambedkar, the phrase 'Union ofStates' has been preferred to 'Federation of States' for two reasons: one, theIndian Federation is not the result of an agreement among the states like theAmerican Federation; and two, the states have no right to secede from thefederation. The federation is an Union because it is indestructible. Thecountry is an integral whole and divided into different states only for theconvenience of administration1.
According to Article 1, the territory of India can be classified into threecategories:
1. Territories of the states2. Union territories3. Territories that may be acquired by the Government of India at any time.The names of states and union territories and their territorial extent arementioned in the first schedule of the Constitution. At present, there are 29states and 7 union territories. The provisions of the Constitution pertaining tothe states are applicable to all the states (except Jammu and Kashmir)2 in thesame manner. However, the special provisions (under Part XXI) applicable tothe States of Maharashtra, Gujarat, Nagaland, Assam, Manipur, AndhraPradesh, Telangana, Sikkim, Mizoram, Arunanchal Pradesh, Goa andKarnataka override the general provisions relating to the states as a class.Further, the Fifth and Sixth Schedules contain separate provisions withrespect to the administration of scheduled areas and tribal areas within thestates.Notably, the 'Territory of India' is a wider expression than the 'Union ofIndia' because the latter includes only states while the former includes notonly the states but also union territories and territories that may be acquiredby the Government of India at any future time. The states are the members ofthe federal system and share a distribution of powers with the Centre. Theunion territories and the acquired territories, on the other hand, are directlyadministered by the Central government.Being a sovereign state, India can acquire foreign territories according tothe modes recognised by international law, i.e., cession (following treaty,purchase, gift, lease or plebiscite), occupation (hitherto unoccupied by arecognised ruler), conquest or subjugation. For example, India acquiredseveral foreign territories such as Dadra and Nagar Haveli; Goa, Daman andDiu; Puducherry; and Sikkim since the commencement of the Constitution.The acquisition of these territories are discussed later in this chapter.Article 2 empowers the Parliament to 'admit into the Union of India, orestablish, new states on such terms and conditions as it thinks fit'. Thus,Article 2 grants two powers to the Parliament: (a) the power to admit into theUnion of India new states; and (b) the power to establish new states. The firstrefers to the admission of states which are already in existence while thewww.freeupscmaterials.orgsecond refers to the establishment of states which were not in existencebefore. Notably, Article 2 relates to the admission or establishment of newstates that are not part of the Union of India. Article 3, on the other hand,relates to the formation of or changes in the existing states of the Union ofIndia. In other words, Article 3 deals with the internal re-adjustment inter se ofthe territories of the constituent states of the Union of India.
PARLIAMENT'S POWER TO REORGANISE THE STATES
Article 3 authorises the Parliament to:(a) form a new state by separation of territory from any state or by unitingtwo or more states or parts of states or by uniting any territory to a part ofany state,(b) increase the area of any state,(c) diminish the area of any state,(d) alter the boundaries of any state, and(e) alter the name of any state.However, Article 3 lays down two conditions in this regard: one, a billcontemplating the above changes can be introduced in the Parliament onlywith the prior recommendation of the President; and two, beforerecommending the bill, the President has to refer the same to the statelegistature concerned for expressing its views within a specified period.Further, the power of Parliament to form new states includes the power toform a new state or union territory by uniting a part of any state or unionterritory to any other state or union territory3.The President (or Parliament) is not bound by the views of the statelegislature and may either accept or reject them, even if the views arereceived in time. Further, it is not necessary to make a fresh reference to thestate legislature every time an amendment to the bill is moved and acceptedin Parliament4. In case of a union territory, no reference need be made to theconcerned legislature to ascertain its views and the Parliament can itself takeany action as it deems fit.It is thus clear that the Constitution authorises the Parliament to form newstates or alter the areas, boundaries or names of the existing states withouttheir consent. In other words, the Parliament can redraw the political map ofwww.freeupscmaterials.orgIndia according to its will. Hence, the territorial integrity or continuedexistence of any state is not guaranteed by the Constitution. Therefore, Indiais rightly described as 'an indestructible union of destructible states'. TheUnion government can destroy the states whereas the state governmentscannot destroy the Union. In USA, on the other hand, the territorial integrityor continued existence of a state is guaranteed by the Constitution. TheAmerican Federal government cannot form new states or alter the borders ofexisting states without the consent of the states concerned. That is why theUSA is described as 'an indestructible union of indestructible states.'Moreover, the Constitution (Article 4) itself declares that laws made foradmission or establishment of new states (under Article 2) and formation ofnew states and alteration of areas, boundaries or names of existing states(under Articles 3) are not to be considered as amendments of the Constitutionunder Article 368. This means that such laws can be passed by a simplemajority and by the ordinary legislative process.Does the power of Parliament to diminish the areas of a state (underArticle 3) include also the power to cede Indian territory to a foreign country?This question came up for examination before the Supreme Court in areference made by the President in 1960. The decision of the Centralgovernment to cede part of a territory known as Berubari Union (westBengal) to Pakistan led to political agitation and controversy and therebynecessitated the Presidential reference. The Supreme Court held that thepower of Parliament to diminish the area of a state (under Article 3) does notcover cession of Indian territory to a foreign country. Hence, Indian territorycan be ceded to a foreign state only by amending the Constitution underArticle 368. Consequently, the 9th Constitutional Amendment Act (1960)was enacted to transfer the said territory to Pakistan.On the other hand, the Supreme Court in 1969 ruled that, settlement of aboundary dispute between India and another country does not require aconstitutional amendment. It can be done by executive action as it does notinvolve cession of Indian territory to a foreign country.The 100th Constitutional Amendment Act (2015) was enacted to giveeffect to the acquiring of certain territories by India and transfer of certainother territories to Bangladesh in pursuance of the agreement and its protocolentered into between the Governments of India and Bangladesh. Under thiswww.freeupscmaterials.orgdeal, India transferred III enclaves to Bangladesh, while Bangladeshtransferred 51 enclaves to India. In addition, the deal also involved thetransfer of adverse possessions and the demarcation of a 6.1-kmundemarcated border stretch. For these three purposes, the amendmentmodified the provisions relating to the territories of four states (Assam, WestBengal, Meghalaya and Tripura) in the First Schedule of the Constitution.The background of this amendment is as follows:1. India and Bangladesh have a common land boundary of approximately4096.7 kms. The India-East Pakistan land boundary was determined asper the Radcliffe Award of 1947. Disputes arose out of some provisionsin the Radcliffe award, which were sought to be resolved through theBagge Award of 1950. Another effort was made to settle these disputesby the Nehru-Noon Agreement of 1958. However, the issue relating todivision of Berubari Union was challenged before the Supreme Court. Tocomply with the opinion rendered by the Supreme Court, the Constitution(Ninth Amendment) Act, 1960 was passed by the Parliament. Due to thecontinuous litigation and other political developments at that time, theConstitution (Ninth Amendment) Act, 1960 could not be notified inrespect of territories in former East Pakistan (presently Bangladesh).4a2. On 16th May, 1974, the Agreement between India and Bangladeshconcerning the demarcation of the land boundary and related matters wassigned between both the countries to find a solution to the complex natureof the border demarcation involved. This Agreement was not ratified as itinvolved, inter alia, transfer of territory which requires a ConstitutionalAmendment. In this connection, it was also required to identify theprecise area on the ground which would be transferred. Subsequently, theissues relating to demarcation of un-demarcated boundary; the territoriesin adverse possession; and exchange of enclaves were identified andresolved by signing a Protocol on 6th September, 2011, which forms anintegral part of the Land Boundary Agreement between India andBangladesh, 1974. The Protocol was prepared with support andconcurrence of the concerned State Governments of Assam, Meghalaya,Tripura and West Bengal.4b
EVOLUTION OF STATES AND UNION TERRITORIES- Integration of Princely States
At the time of independence, India comprised two categories of politicalunits, namely, the British provinces (under the direct rule of Britishgovernment) and the princely states (under the rule of native princes butsubject to the paramountcy of the British Crown). The Indian IndependenceAct (1947) created two independent and separate dominions of India andPakistan and gave three options to the princely states viz., joining India,joining Pakistan or remaining independent. Of the 552 princely states situatedwithin the geographical boundaries of India, 549 joined India and theremaining 3 (Hyderabad, Junagarh and Kashmir) refused to join India.However, in course of time, they were also integrated with IndiaâHyderabadby means of police action, Junagarh by means of referendum and Kashmir bythe Instrument of Accession.In 1950, the Constitution contained a four-fold classification of the statesof the Indian UnionâPart A, Part B, Part C and Part D State5. In all, theynumbered 29. Part-A states comprised nine erstwhile governor's provinces ofBritish India. Part-B states consisted of nine erstwhile princely states withlegislatures. Part-C states consisted of erstwhile chief commissioner'sprovinces of British India and some of the erstwhile princely states. ThesePart-C states (in all 10 in number) were centrally administered. The Andamanand Nicobar Islands were kept as the solitary Part-D state.
Dhar Commission and JVP Committee
The integration of princely states with the rest of India has purely an ad hocarrangement. There has been a demand from different regions, particularlySouth India, for reorganisation of states on linguistic basis. Accordingly, inJune 1948, the Government of India appointed the Linguistic ProvincesCommission under the chairmanship of S K Dhar to examine the feasibilityof this. The commission submitted its report in December 1948 andrecommended the reorganisation of states on the basis of administrativeconvenience rather than linguistic factor. This created much resentment andled to the appointment of another Linguistic Provinces Committee by theCongress in December 1948 itself to examine the whole question afresh. Itconsisted of Jawaharlal Nehru, Vallahbhai Patel and Pattabhi Sitaramayyaand hence, was popularly known as JVP Committee6. It submitted its reportin April 1949 and formally rejected language as the basis for reorganisationof states.However, in October 1953, the Government of India was forced to createthe first linguistic state, known as Andhra state, by separating the Teluguspeaking areas from the Madras state. This followed a prolonged popularagitation and the death of Potti Sriramulu, a Congress person of standing,after a 56-day hunger strike for the cause.
Fazl Ali Commission
The creation of Andhra state intensified the demand from other regions forcreation of states on linguistic basis. This forced the Government of India toappoint (in December 1953) a three-member States ReorganisationCommission under the chairmanship of Fazl Ali to re-examine the wholequestion. Its other two members were K M Panikkar and H N Kunzru. Itsubmitted its report in September 1955 and broadly accepted language as thebasis of reorganisation of states. But, it rejected the theory of 'one language-one state'. Its view was that the unity of India should be regarded as theprimary consideration in any redrawing of the country's political units. Itidentified four major factors that can be taken into account in any scheme ofreorganisation of states:(a) Preservation and strengthening of the unity and security of the country.(b) Linguistic and cultural homogeneity.(c) Financial, economic and administrative considerations.(d) Planning and promotion of the welfare of the people in each state as wellas of the nation as a whole.The commission suggested the abolition of the four-fold classification ofstates under the original Constitution and creation of 16 states and 3 centrallyadministered territories. The Government of India accepted theserecommendations with certain minor modifications. By the StatesReorganisation Act (1956) and the 7th Constitutional Amendment Act(1956), the distinction between Part-A and Part-B states was done away withand Part-C states were abolished. Some of them were merged with adjacentstates and some other were designated as union territories. As a result, 14states and 6 union territories were created on November 1, 1956.7The States Reorganisation Act of 1956 established the new state of Keralaby merging the Travancore - Cochin State with the Malabar District ofMadras state and Kasargode of South Canara (Dakshina Kannada). It mergedthe Telugu-speaking areas of Hyderabad state with the Andhra state to createthe Andhra Pradesh state. Further, it merged the Madya Bharat state, VindyaPradesh state and Bhopal state into the Madya Pradesh state. Similarly, itmerged the Saurashtra state and Kutch state into that of the Bombay state, theCoorg state into that of Mysore state; the Patiala and East Punjab StatesUnion (Pepsu) into that of Punjab state; and the Ajmer state into that ofRajastan state. Moreover, it created the new union territory of Laccadive,Minicoy and Amindivi Islands from the territory detached from the Madrasstate.
New States and Union Territories Created After 1956
Even after the large-scale reorganisation of the states in 1956, the politicalmap of India underwent continuous change due to the pressure of popularagitations and political conditions. The demand for the creation of some morestates on the basis of language or cultural homogeneity resulted in thebifurcation of existing states.www.freeupscmaterials.orgMaharashtra and Gujarat In 1960, the bilingual state of Bombay wasdivided8 into two separate statesâMaharashtra for Marathi-speaking peopleand Gujarat for Gujarati-speaking people. Gujarat was established as the 15thstate of the Indian Union.Dadra and Nagar Haveli The Portuguese ruled this territory until itsliberation in 1954. Subsequently, the administration was carried on till 1961by an administrator chosen by the people themselves. It was converted into aunion territory of India by the 10th Constitutional Amendment Act, 1961.Goa, Daman and Diu India acquired these three territories from thePortuguese by means of a police action in 1961. They were constituted as aunion territory by the 12th Constitutional Amendment Act, 1962. Later, in1987, Goa was conferred a statehood.9 Consequently, Daman and Diu wasmade a separate union territory.Puducherry The territory of Puducherry comprises the former Frenchestablishments in India known as Puducherry, Karaikal, Mahe and Yanam.The French handed over this territory to India in 1954. Subsequently, it wasadministered as an 'acquired territory', till 1962 when it was made a unionterritory by the 14th Constitutional Amendment Act.Nagaland In 1963, the State of Nagaland was formed10 by taking the NagaHills and Tuensang area out of the state of Assam. This was done to satisfythe movement of the hostile Nagas. However, before giving Nagaland thestatus of the 16th state of the Indian Union, it was placed under the control ofgovernor of Assam in 1961.Haryana, Chandigarh and Himachal Pradesh In 1966, the State ofPunjab was bifurcated11 to create Haryana, the 17th state of the Indian Union,and the union territory of Chandigarh. This followed the demand for aseparate 'Sikh Homeland' (Punjabi Subha) raised by the Akali Dal under theleadership of Master Tara Singh. On the recommendation of the ShahCommission (1966), the punjabi-speaking areas were constituted into theunilingual state of Punjab, the Hindi-speaking areas were constituted into thewww.freeupscmaterials.orgState of Haryana and the hill areas were merged with the adjoining unionterritory of Himachal Pradesh. In 1971, the union territory of HimachalPradesh was elevated12 to the status of a state (18th state of the IndianUnion).Manipur, Tripura and Meghalaya In 1972, the political map ofNortheast India underwent a major change.13 Thus, the two Union Territoriesof Manipur and Tripura and the Sub-State of Meghalaya got statehood andthe two union territories of Mizoram and Arunachal Pradesh (originallyknown as North-East Frontier AgencyâNEFA) came into being. With this,the number of states of the Indian Union increased to 21 (Manipur 19th,Tripura 20th and Meghalaya 21st). Initially, the 22nd ConstitutionalAmendment Act (1969) created Meghalaya as an 'autonomous state' or 'substate'within the state of Assam with its own legislature and council ofministers. However, this did not satisfy the aspirations of the people ofMeghalaya. The union territories of Mizoram and Arunachal Pradesh werealso formed out of the territories of Assam.Sikkim Till 1947, Sikkim was an Indian princely state ruled by Chogyal. In1947, after the lapse of British paramountcy, Sikkim became a 'protectorate'of India, whereby the Indian Government assumed responsibility for thedefence, external affairs and communications of Sikkim. In 1974, Sikkimexpressed its desire for greater association with India. Accordingly, the 35thConstitutional Amendment Act (1974) was enacted by the parliament. Thisamendment introduced a new class of statehood under the constitution byconferring on Sikkim the status of an 'associate state' of the Indian Union.For this purpose, a new Article 2A and a new schedule (Tenth Schedulecontaining the terms and conditions of association) were inserted in theConstitution. This experiment, however, did not last long as it could not fullysatisfy the aspirations of the people of Sikkim. In a referendum held in 1975,they voted for the abolition of the institution of Chogyal and Sikkimbecoming an integral part of India. Consequently, the 36th ConstitutionalAmendment Act (1975) was enacted to make Sikkim a full-fledged state ofthe Indian Union (the 22nd state). This amendment amended the First and theFourth Schedules to the Constitution and added a new Article 371-F towww.freeupscmaterials.orgprovide for certain special provisions with respect to the administration ofSikkim. It also repealed Article 2A and the Tenth Schedule that were addedby the 35th Amendment Act of 1974.Mizoram, Arunachal Pradesh and Goa In 1987, three new States ofMizoram,14 Arunachal Pradesh15 and Goa16 came into being as the 23rd, 24thand 25th states of the Indian Union respectively. The Union Territory ofMizoram was conferred the status of a full state as a sequel to the signing of amemorandum of settlement (Mizoram Peace Accord) in 1986 between theCentral government and the Mizo National Front, ending the two-decade-oldinsurgency. Arunachal Pradesh had also been a union territory from 1972.The State of Goa was created by separating the territory of Goa from theUnion Territory of Goa, Daman and Diu.Chhattisgarh, Uttarakhand and Jharkhand In 2000, three morenew States of Chhattisgarh,17 Uttarakhand18 and Jharkhand19 were createdout of the territories of Madhya Pradesh, Uttar Pradesh and Biharrespectively. These became the 26th, 27th and 28th states of the Indian Unionrespectively.Telangana In 2014, the new state of Telangana came into existence as the29th state of the Indian Union. It was carved out of the territories of AndhraPradesh.The Andhra state Act of 1953 formed the first linguistic state of India,known as the state of Andhra, by taking out the Telugu speaking areas fromthe State of Madras (now Tamil Nadu), Kurnool was the capital of Andhrastate and the state high court was established at Guntur.The States Reorganisation Act of 1956 merged the Telugu-speaking areasof Hyderabad state with the Andhra state to create the enlarged AndhraPradesh state. The capital of the state was shifted to Hyderabad.Again, the Andhra Pradesh Reorganisation Act of 2014 bifurcated theAndhra Pradesh into two separate states, namely, the Andhra Pradesh(residuary) and the Telangana. Hyderabad is made the joint capital for boththe states for a period of 10 years. During this period, the Andhra Pradeshshould establish its own separate capital. Similarly, the Andhra Pradesh Highwww.freeupscmaterials.orgCourt is renamed as the Hyderabad High Court (High Court of Judicature atHyderabad) and is made common for both the states till a separate HighCourt is set-up for the State of Andhra Pradesh.Thus, the number of states and union territories increased from 14 and 6 in1956 to 29 and 7 in 2014 respectively.20
names of some states and union territories havealso been changed.
The United Provinces was the first state to have a newname. It was renamed 'Uttar Pradesh' in 1950. In 1969, Madras wasrenamed21 'Tamil Nadu'. Similarly, in 1973, Mysore was renamed21'Karnataka'. In the same year, Laccadive, Minicoy and Amindivi Islandswere renamed23 'Lakshadweep'. In 1992, the Union Territory of Delhi wasredesignated as the National Capital Territory of Delhi (without beingconferred the status of a full-fledged state) by the 69th ConstitutionalAmendment Act, 1991.24 In 2006, Uttaranchal was renamed25 as'Uttarakhand'. In the same year, Pondicherry was renamed26 as 'Puducherry'.In 2011, Orissa was renamed27 as 'Odisha'.
Citizenship -- MEANING AND SIGNIFICANCE
CitizenshipMEANING AND SIGNIFICANCEike any other modern state, India has two kinds of peopleâcitizens andaliens. Citizens are full members of the Indian State and owe allegianceto it. They enjoy all civil and political rights. Aliens, on the other hand, arethe citizens of some other state and hence, do not enjoy all the civil andpolitical rights. They are of two categoriesâfriendly aliens or enemy aliens.Friendly aliens are the subjects of those countries that have cordial relationswith India. Enemy aliens, on the other hand, are the subjects of that countrythat is at war with India. They enjoy lesser rights than the friendly aliens, eg,they do not enjoy protection against arrest and detention (Article 22
The Constitution confers the following rights and privileges on the citizensof India (and denies the same to aliens):
1. Right against discrimination on grounds of religion, race, caste, sex orplace of birth (Article 15).2. Right to equality of opportunity in the matter of public employment(Article 16).3. Right to freedom of speech and expression, assembly, association,movement, residence and profession (Article 19).4. Cultural and educational rights (Articles 29 and 30).5. Right to vote in elections to the Lok Sabha and state legislative assembly.6. Right to contest for the membership of the Parliament and the statewww.freeupscmaterials.orglegislature.7. Eligibility to hold certain public offices, that is, President of India, Vice-President of India, judges of the Supreme Court and the high courts,governor of states, attorney general of India and advocate general ofstates.Along with the above rights, the citizens also owe certain duties towardsthe Indian State, as for example, paying taxes, respecting the national flagand national anthem, defending the country and so on.In India both a citizen by birth as well as a naturalised citizen are eligiblefor the office of President while in USA, only a citizen by birth and not anaturalised citizen is eligible for the office of President.
CONSTITUTIONAL PROVISIONSThe Constitution deals with the citizenship
The Constitution deals with the citizenship from Articles 5 to 11 under PartII. However, it contains neither any permanent nor any elaborate provisionsin this regard. It only identifies the persons who became citizens of India atits commencement (i.e., on January 26, 1950). It does not deal with theproblem of acquisition or loss of citizenship subsequent to itscommencement. It empowers the Parliament to enact a law to provide forsuch matters and any other matter relating to citizenship. Accordingly, theParliament has enacted the Citizenship Act, 1955, which has been amendedin 1957, 1960, 1985, 1986, 1992, 2003, 2005 and 2015.
According to the Constitution, the following four categories of personsbecame the citizens of India at its commencement i.e., on 26 January, 1950:
1. A person who had his domicile in India and also fulfilled any one of thethree conditions, viz., if he was born in India; or if either of his parentswas born in India; or if he has been ordinarily resident in India for fiveyears immediately before the commencement of the Constitution, becamea citizen of India (Article 5).2. A person who migrated to India from Pakistan became an Indian citizen ifhe or either of his parents or any of his grandparents was born inundivided India and also fulfilled any one of the two conditions viz., incase he migrated to India before July 19, 19481, he had been ordinarilyresident in India since the date of his migration; or in case he migrated towww.freeupscmaterials.orgIndia on or after July 19, 1948, he had been registered as a citizen ofIndia. But, a person could be so registered only if he had been resident inIndia for six months preceding the date of his application for registration(Article 6).3. A person who migrated to Pakistan from India after March 1, 1947, butlater returned to India for resettlement could become an Indian citizen.For this, he had to be resident in India for six months preceding the dateof his application for registration2 (Article 7).4. A person who, or any of whose parents or grandparents, was born inundivided India but who is ordinarily residing outside India shall becomean Indian citizen if he has been registered as a citizen of India by thediplomatic or consular representative of India in the country of hisresidence, whether before or after the commencement of the Constitution.Thus, this provision covers the overseas Indians who may want to acquireIndian citizenship (Article 8).To sum up, these provisions deal with the citizenship of (a) personsdomiciled in India; (b) persons migrated from Pakistan; (c) persons migratedto Pakistan but later returned; and (d) persons of Indian origin residingoutside India.
The other constitutional provisions with respect to the citizenship are asfollows:
follows:1. No person shall be a citizen of India or be deemed to be a citizen of India,if he has voluntarily acquired the citizenship of any foreign state (Article9).2. Every person who is or is deemed to be a citizen of India shall continue tobe such citizen, subject to the provisions of any law made by Parliament(Article 10).3. Parliament shall have the power to make any provision with respect to theacquisition and termination of citizenship and all other matters relating tocitizenship (Article 11)
CITIZENSHIP ACT, 1955
The Citizenship Act (1955) provides for acquisition and loss of citizenshipafter the commencement of the Constitution. This Act has been amended sowww.freeupscmaterials.orgfar eight times by the following Acts:1. The Citizenship (Amendment) Act, 19572. The Repealing and Amending Act, 19603. The Citizenship (Amendment) Act, 19854. The Citizenship (Amendment) Act, 19865. The Citizenship (Amendment) Act, 19926. The Citizenship (Amendment) Act, 20037. The Citizenship (Amendment) Act, 20058. The Citizenship (Amendment) Act, 2015Originally, the Citizenship Act (1955) also provided for theCommonwealth Citizenship. But, this provision was repealed by theCitizenship (Amendment) Act, 2003.
Acquisition of Citizenship
The Citizenship Act of 1955 prescribes five ways of acquiring citizenship,viz, birth, descent, registration, naturalisation and incorporation of by birthby desentby registration4. By Naturalisation6. Special Provisions as to Citizenship of Persons Covered by the Assam Accord
Acquisition of Citizenship - by birth
A person born in India on or after 26th January 1950 but before1st July 1987 is a citizen of India by birth irrespective of the nationality of hisparents.A person born in India on or after 1st July 1987 is considered as a citizen ofIndia only if either of his parents is a citizen of India at the time of his birth.Further, those born in India on or after 3rd December 2004 are consideredcitizens of India only if both of their parents are citizens of India or one ofwhose parents is a citizen of India and the other is not an illegal migrant atthe time of their birth.The children of foreign diplomats posted in India and enemy aliens cannotacquire Indian citizenship by birth.
Acquisition of Citizenship- by desent
A person born outside India on or after 26th January 1950but before 10th December 1992 is a citizen of India by descent, if his fatherwas a citizen of India at the time of his birth.A person born outside India on or after 10th December 1992 is consideredas a citizen of India if either of his parents is a citizen of India at the time ofwww.freeupscmaterials.orghis birth.From 3rd December 2004 onwards, a person born outside India shall not bea citizen of India by descent, unless his birth is registered at an Indianconsulate within one year of the date of birth or with the permission of theCentral Government, after the expiry of the said period. An application, forregistration of the birth of a minor child, to an Indian consulate shall beaccompanied by an undertaking in writing from the parents of such minorchild that he or she does not hold the passport of another country.Further, a minor who is a citizen of India by virtue of descent and is also acitizen of any other country shall cease to be a citizen of India if he does notrenounce the citizenship or nationality of another country within six monthsof his attaining full age.
citizenship 3. By Registration
The Central Government may, on an application,register as a citizen of India any person (not being an illegal migrant) if hebelongs to any of the following categories, namely:-(a) a person of Indian origin who is ordinarily resident in India for sevenyears before making an application for registration;(b) a person of Indian origin who is ordinarily resident in any country orplace outside undivided India;(c) a person who is married to a citizen of India and is ordinarily resident inIndia for seven years before making an application for registration;(d) minor children of persons who are citizens of India;(e) a person of full age and capacity whose parents are registered as citizensof India;(f) a person of full age and capacity who, or either of his parents, was earliercitizen of independent India, and is ordinarily resident in India for twelvemonths immediately before making an application for registration;(g) a person of full age and capacity who has been registered as an overseascitizen of India cardholder for five years, and who is ordinarily resident inIndia for twelve months before making an application for registration.A person shall be deemed to be of Indian origin if he, or either of hisparents, was born in undivided India or in such other territory which becamepart of India after the 15th August, 1947.All the above categories of persons must take an oath of allegiance beforewww.freeupscmaterials.orgthey are registered as citizens of India. The form of the oath is as follows:I, A/B................... do solemnly affirm (or swear) that I will bear truefaith and allegiance to the Constitution of India as by law established, andthat I will faithfully observe the laws of India and fulfill my duties as acitizen of India.
citizenship by nuturalisation
The Central Government may, on an application,grant a certificate of naturalisation to any person (not being an illegalmigrant) if he possesses the following qualifications:(a) that he is not a subject or citizen of any country where citizens of India areprevented from becoming subjects or citizens of that country bynaturalisation;(b) that, if he is a citizen of any country, he undertakes to renounce thecitizenship of that country in the event of his application for Indiancitizenship being accepted;(c) that he has either resided in India or been in the service of a Governmentin India or partly the one and partly the other, throughout the period oftwelve months immediately preceding the date of the application;(d) that during the fourteen years immediately preceding the said period oftwelve months, he has either resided in India or been in the service of aGovernment in India, or partly the one and partly the other, for periodsamounting in the aggregate to not less than eleven years;(e) that he is of good character;(f) that he has an adequate knowledge of a language specified in the EighthSchedule to the Constitution3, and(g) that in the event of a certificate of naturalisation being granted to him, heintends to reside in India, or to enter into or continue in, service under aGovernment in India or under an international organisation of which Indiais a member or under a society, company or body of persons established inIndia.However, the Government of India may waive all or any of the aboveconditions for naturalisation in the case of a person who has rendereddistinguished service to the science, philosophy, art, literature, world peace orhuman progress. Every naturalised citizen must take an oath of allegiance tothe Constitution of India
citizenship by incorporation of territory
If any foreign territory becomes a part ofIndia, the Government of India specifies the persons who among the peopleof the territory shall be the citizens of India. Such persons become thecitizens of India from the notified date. For example, when Pondicherrybecame a part of India, the Government of India issued the Citizenship(Pondicherry) Order, 1962, under the Citizenship Act, 1955.
6. Special Provisions as to Citizenship of Persons Covered by the AssamAccord
The Citizenship (Amendment) Act, 1985, added the followingspecial provisions as to citizenship of persons covered by the Assam Accord(which related to the foreigners' issue):(a) All persons of Indian origin who came to Assam before the 1st January,1966 from Bangladesh and who have been ordinarily residents in Assamsince the date of their entry into Assam shall be deemed to be citizens ofIndia as from the 1st January, 1966.(b) Every person of Indian origin who came to Assam on or after the 1stJanuary, 1966 but before the 25th March, 1971 from Bangladesh and whohas been ordinarily resident in Assam since the date of his entry intoAssam and who has been detected to be a foreigner shall register himself.Such a registered person shall be deemed to be a citizen of India for allpurposes as from the date of expiry of a period of ten years from the dateof detection as a foreigner. But, in the intervening period of ten years, heshall have the same rights and obligations as a citizen of India, exceptingthe right to vote.
The Citizenship Act, 1955, prescribes three ways of losing citizenshipwhether acquired under the Act or prior to it under the Constitution, viz,renunciation, termination and deprivation
1. By Renunciation Any citizen of India of full age and capacity can make adeclaration renouncing his Indian citizenship. Upon the registration of thatdeclaration, that person ceases to be a citizen of India. However, if such adeclaration is made during a war in which India is engaged, its registrationshall be withheld by the Central Government.www.freeupscmaterials.orgFurther, when a person renounces his Indian citizenship, every minor childof that person also loses Indian citizenship. However, when such a childattains the age of eighteen, he may resume Indian citizenship.2. By Termination When an Indian citizen voluntarily (consciously,knowingly and without duress, undue influence or compulsion) acquires thecitizenship of another country, his Indian citizenship automaticallyterminates. This provision, however, does not apply during a war in whichIndia is engaged.3. By Deprivation It is a compulsory termination of Indian citizenship by theCentral government, if:(a) the citizen has obtained the citizenship by fraud:(b) the citizen has shown disloyalty to the Constitution of India:(c) the citizen has unlawfully traded or communicated with the enemy duringa war;(d) the citizen has, within five years after registration or naturalisation, beenimprisoned in any country for two years; and(e) the citizen has been ordinarily resident out of India for seven yearscontinuously.4
SINGLE CITIZENSHIP
Though the Indian Constitution is federal and envisages a dual polity (Centreand states), it provides for only a single citizenship, that is, the Indiancitizenship. The citizens in India owe allegiance only to the Union. There isno separate state citizenship. The other federal states like USA andSwitzerland, on the other hand, adopted the system of double citizenship.In USA, each person is not only a citizen of USA but also of the particularstate to which he belongs. Thus, he owes allegiance to both and enjoys dualsets of rightsâone set conferred by the national government and another bythe state government. This system creates the problem of discrimination, thatis, a state may discriminate in favour of its citizens in matters like right tovote, right to hold public offices, right to practice professions and so on. Thisproblem is avoided in the system of single citizenship prevalent in India.In India, all citizens irrespective of the state in which they are born orwww.freeupscmaterials.orgreside enjoy the same political and civil rights of citizenship all over thecountry and no discrimination is made between them. However, this generalrule of absence of discrimination is subject to some exceptions, viz,1. The Parliament (under Article 16) can prescribe residence within a stateor union territory as a condition for certain employments or appointmentsin that state or union territory, or local authority or other authority withinthat state or union territory. Accordingly, the Parliament enacted thePublic Employment (Requirement as to Residence) Act, 1957 and therebyauthorised the Government of India to prescribe residential qualificationonly for appointment to non-Gazetted posts in Andhra Pradesh, HimachalPradesh, Manipur and Tripura. As this Act expired in 1974, there is nosuch provision for any state except Andhra Pradesh5 and Telangana5a.2. The Constitution (under Article 15) prohibits discrimination against anycitizen on grounds of religion, race, caste, sex or place of birth and not onthe ground of residence. This means that the state can provide specialbenefits or give preference to its residents in matters that do not comewithin the purview of the rights given by the Constitution to the Indiancitizens. For example, a state may offer concession in fees for educationto its residents.3. The freedom of movement and residence (under Article 19) is subjectedto the protection of interests of any schedule tribe. In other words, theright of outsiders to enter, reside and settle in tribal areas is restricted. Ofcourse, this is done to protect the distinctive culture, language, customsand manners of schedule tribes and to safeguard their traditional vocationand property against exploitation.4. In the case of Jammu and Kashmir, the state legislature is empowered todefine the persons who are permanent residents of the state and conferany special rights and privileges in matters of employment under the stategovernment, acquisition of immovable property in the state, settlement inthe state and scholarships and such other forms of aid provided by thestate government.6The Constitution of India, like that of Canada, has introduced the system ofsingle citizenship and provided uniform rights (except in few cases) for thepeople of India to promote the feeling of fraternity and unity among them andto build an integrated Indian nation. Despite this, India has been witnessingwww.freeupscmaterials.orgthe communal riots, class conflicts, caste wars, linguistic clashes and ethnicdisputes. Thus, the cherished goal of the founding fathers and theConstitution-makers to build an united and integrated Indian nation has notbeen fully realised.
OVERSEAS CITIZENSHIP OF INDIA
In September 2000, the Government of India (Ministry of External Affairs)had set-up a High Level Committee on the Indian Diaspora under theChairmanship of L.M. Singhvi. The mandate of the Committee was to make acomprehensive study of the global Indian Diaspora and to recommendmeasures for a constructive relationship with them.The committee submitted its report in January 2002. It recommended theamendment of the Citizenship Act, 1955, to provide for grant of dualcitizenship to the Persons of Indian Origin (PIOs) belonging to certainspecified countries.Accordingly, the citizenship (Amendment) Act, 2003, made provision foracquisition of Overseas Citizenship of India (OCI) by the PIOs of 16specified countries other than Pakistan and Bangladesh. It also omitted allprovisions recognizing, or relating to the Commonwealth Citizenship fromthe Principal Act.Later, the Citizenship (Amendment) Act, 2005, expanded the scope ofgrant of OCI for PIOs of all countries except Pakistan and Bangladesh aslong as their home countries all dual citizenship under their local laws. Itmust be noted here that the OCI is not actually a dual citizenships as theIndian Constitution forbids dual citizenship or dual nationality (Article 9).Again, the Citizenship (Amendment) Act, 2015, has modified theprovisions pertaining to the OCI in the Principal Act. It has introduced a newscheme called "Overseas Citizen of India Cardholder" by merging the PIOcard scheme and the OCI card scheme.The PIO card scheme was introduced on 19-08-2002 and thereafter theOCI card scheme was introduced w.e.f. 01-12-2005. Both the schemes wererunning in parallel even though the OCI card scheme had become morepopular. This was causing unnecessary confusion in the minds of applicants.Keeping in view some problems being faced by applicants and to providewww.freeupscmaterials.orgenhanced facilities to them, the Government of India decided to formulateone single scheme after merging the PIO and schemes, OCI containingpositive attributes of both. Hence, for achieving this objective, theCitizenship (Amendment) Act, 2015, was enacted. The PIO scheme wasrescinded w.e.f. 09-01-2015 and it was also notified that all existing PIOcardholders shall be deemed to be OCI cardholders w.e.f. 09-01-2015.7The Citizenship (Amendment) Act, 2015, replaced the nomenclature of"Overseas Citizen of India" with that of "Overseas Citizen of IndiaCardholder" and made the following provisions in the Principal Act :
I. Registration of Overseas Citizen of India Cardholder
(1) The Central Government may, on an application made in this behalf,register as an Overseas Citizen of India Cardholderâ(a) any person of full age and capacity,â(i) who is a citizen of another country, but was a citizen of India atthe time of, or at any time after the commencement of theConstitution; or(ii) who is a citizen of another country, but was eligible to become acitizen of India at the time of the commencement of theConstitution; or(iii) who is a citizen of another country, but belonged to a territorythat became part of India after the 15th August,1947; or(iv) who is a child or a grandchild or a great grandchild of such acitizen; or(b) a person, who is a minor child of a person mentioned in clause (a); or(c) a person, who is a minor child, and whose both parents are citizens ofIndia or one of the parents is a citizen of India; or(d) spouse of foreign origin of a citizen of India or spouse of foreignorigin of an Overseas Citizen of India Cardholder and whose marriagehas been registered and subsisted for a continuous period of not lessthan two years immediately preceding the presentation of theapplication.No person, who or either of whose parents or grandparents or greatgrandparents is or had been a citizen of Pakistan, Bangladesh or suchwww.freeupscmaterials.orgother country as the Central Government may, specify, shall be eligiblefor registration as an Overseas Citizen of India Cardholder.(2) The Central Government may specify the date from which the existingpersons of Indian Origin Cardholders shall be deemed to be OverseasCitizens of India Cardholders.(3) Notwithstanding anything contained in point (1), the Central Governmentmay, if it is satisfied that special circumstances exist, after recording thecircumstances in writing, register a person as an Overseas Citizen of IndiaCardholder.
II. Conferment of Rights on Overseas Citizen of IndiaCardholder
(1) An Overseas Citizen of India Cardholder shall be entitled to such rights,as the Central Government may specify in this behalf.(2) An Overseas Citizen of India Cardholder shall not be entitled to thefollowing rights (which are conferred on a citizen of India)â(a) He shall not be entitled to the right to equality of opportunity inmatters of public employment.(b) He shall not be eligible for election as President.(c) He shall not be eligible for election as Vice-President.(d) He shall not be eligible for appointment as a Judge of the SupremeCourt.(e) He shall not be eligible for appointment as a Judge of the High Court.(f) He shall not be entitled for registration as a voter.(g) He shall not be eligible for being a member of the House of thePeople or of the Council of States.(h) He shall not be eligible for being a member of the State LegislativeAssembly or the States Legislative Council.(i) He shall not be eligible for appointment to public services and posts inconnection with affairs of the Union or of any State except forappointment in such services and posts as the Central Governmentmay specify.
III. Renunciation of Overseas Citizen of India Card
(1) If any Overseas Citizen of India Cardholder makes in prescribed manner adeclaration renouncing the Card registering him as an Overseas Citizen ofIndia Cardholder, the declaration shall be registered by the CentralGovernment, and upon such registration, that person shall cease to be anOverseas Citizen of India Cardholder.(2) Where a person ceases to be an Overseas Citizen of India Cardholder, thespouse of foreign origin of that person, who has obtained Overseas Citizenof India Card, and every minor child of that person registered as anOverseas Citizen of India Cardholder shall thereupon cease to be anOverseas Citizen of India Cardholder.
IV. Cancellation of Registration as Overseas Citizen ofIndia Cardholder
The Central Government may cancel the registration of a person as anOverseas Citizen of India Cardholder, if it is satisfied thatâ(a) the registration as an Overseas Citizen of India Cardholder was obtainedby means of fraud, false representation or the concealment of any materialfact; or(b) the Overseas Citizen of India Cardholder has shown disaffection towardsthe Constitution of India; or(c) the Overseas Citizen of India Cardholder has, during any war in whichIndia may be engaged, unlawfully traded or communicated with anenemy; or(d) the Overseas Citizen of India Cardholder has, within five years afterregistration, been sentenced to imprisonment for a term of not less thantwo years; or(e) it is necessary so to do in the interests of the sovereignty and integrity ofIndia, the security of India, friendly relations of India with any foreigncountry, or in the interests of the general public; or(f) the marriage of an Overseas Citizen of India Cardholderâ(i) has been dissolved by a competent court of law or otherwise; or(ii) has not been dissolved but, during the subsistence of such marriage,he has solemnised marriage with any other person.
Table 6.1 Comparing NRI, PIO and OCI Cardholder8
Sl.No.Elements ofComparisonNon-ResidentIndian(NRI)PersonofIndianOrigin(PIO)Overseas Citizenof India (OCI)Cardholder1. Who ?An Indiancitizen whois ordinarilyresidingoutsideIndia andholds anIndianPassportA personwho orwhose anyofancestorswas anIndiannationaland who ispresentlyholdinganothercountry'scitizenship/nationalityi.e. he/sheis holdingforeignpassportA person registered asOverseas Citizen ofIndia (OCI)Cardholder under theCitizenship Act, 1955Following categoriesof foreign nationals areeligible for registrationas Overseas Citizen ofIndia (OCI)Cardholder:-(1) Who was a citizenof India at the time of,www.freeupscmaterials.org2. Who is eligible? â âor at any time after thecommencement of theConstitution i.e.26.01.1950; or(2) who was eligible tobecome a citizen ofIndia on 26.01.1950;or(3) who belonged to aterritory that becamepart of India after15.08.1947; or(4) who is a child or agrandchild or a greatgrandchild of such acitizen; or(5) who is a minorchild of such personsmentioned above; or(6) who is a minorchild and whose bothparents are citizens ofIndia or one of theparents is a citizen ofIndia; or(7) spouse of foreignorigin of a citizen ofIndia or spouse offoreign origin of anOverseas Citizen ofIndia Cardholderregistered under theCitizenship Act, 1955and whose marriagehas been registeredand subsisted for awww.freeupscmaterials.orgcontinuous period ofnot less than two yearsimmediately precedingthe presentation of theapplication.3. How can oneget ? â â Eligible persons toapply online.4. Where to apply? â âTill such time theonline paymentfacility is introduced,the followinginstructions shall befollowed:-(i) The print out ofthe online applicationform, completed in allrespects, along withenclosures, demanddraft and photographin duplicate should besubmitted to theIndian Mission/Posthaving jurisdictionover the country ofwhich the applicant isa citizen or if he/sheis not living in thecountry of his/hercitizenship, to theIndian Mission/Posthaving jurisdictionover the country ofwhich the applicant isordinarily a resident.www.freeupscmaterials.org(ii) If the applicant isresiding in India, theprint out of the onlineapplication form,completed in allrespects, along withenclosures, demanddraft and photographsin duplicate should besubmitted to theForeigners RegionalRegistration Offices(FRROs) according totheir jurisdictionalcontrol.5. Fees ? â â(a) in case ofapplication submittedin Indian Mission/Post abroad-US $275 or equivalent inlocal currency.(b) in case ofapplication submittedin India-Rs.15,000/-6. Which nationalsare ineligible ? â âNo person, who oreither of whoseparents orgrandparents or greatgrandparents is or hadbeen a citizen ofPakistan, Bangladeshor such other countryas the CentralGovernment maywww.freeupscmaterials.orgspecify, shall beeligible forregistration as anOverseas Citizen ofIndia Cardholder.7.What benefitsone is entitledto ?All benefitsasavailable toIndiancitizenssubject tonotificationsissued bytheGovernmentfrom time totimeNospecificbenefits(i) Multiple entrylifelong visa forvisiting India for anypurpose (HoweverOCI Cardholders willrequire a specialpermission toundertake researchwork in India forwhich they maysubmit the applicationto the Indian Mission/Post/ FRROconcerned).(ii) Exemption fromregistration withForeigners RegionalRegistration Officer(FRRO) or ForeignersRegistration Officer(FRO) for any lengthof stay in India.(iii) Parity with Non-Resident Indians(NRIs) in respect ofall facilities availableto them in economic,financial, andeducational fieldsexcept in matterswww.freeupscmaterials.orgrelating to theacquisition ofagricultural orplantation properties.(iv) RegisteredOverseas Citizen ofIndia Cardholder shallbe treated at par withNon-Resident Indiansin the matter of intercountryadoption ofIndian children.(v) RegisteredOverseas Citizen ofIndia Cardholder shallbe treated at par withresident Indiannationals in the matterof tariffs in air faresin domestic sectors inIndia.(vi) RegisteredOverseas Citizen ofIndia Cardholder shallbe charged the sameentry fee as domesticIndian visitors to visitnational parks andwildlife sanctuaries inIndia.(vii) Parity with Non-Resident Indians(NRI) in respect of:-(A) entry fees to becharged for visitingwww.freeupscmaterials.orgthe nationalmonuments, historicalsites and museums inIndia.(B) pursuing thefollowing professionsin India, in pursuanceof the provisionscontained in therelevant Acts,namely:-(a) doctors, dentists,nurses andpharmacists;(b) advocates;(c) architects; and(d) charteredaccountants.(C) to appear for theAll India Pre-MedicalTest or such othertests to make themeligible for admissionin pursuance of theprovisions containedin the relevant Acts.(viii) StateGovernments shouldensure that the OCICardholderregistration bookletsof OCI Cardholdersare treated as theiridentification for anyservices rendered tothem. In case proof ofwww.freeupscmaterials.orgresidence is required,Overseas Citizens ofIndia Cardholder maygive an affidavitstating that aparticular/specificaddress may betreated as their placeof residence in India.8.Does he/sherequire visa forvisiting India ?No YesCan visit Indiawithout visa for lifelong.9.Is he/sherequired toregister with thelocal policeauthorities inIndia ?NoYes if theperiod ofstay is formore than180 daysNo10.What activitiescan beundertaken inIndia ?AllActivitiesActivity asper thetype ofvisaobtainedAll activities exceptresearch work forwhich specialpermission is requiredfrom the IndianMission/Post/ FRROconcerned.11.How can oneacquire IndianHe/she is anIndianAs per theCitizenshipAct, 1955,he/she hasto beordinarilyresident inIndia for aAs per the CitizenshipAct,1955, a personregistered as an OCIcardholder for 5 yearsand who is ordinarilyresident in India forwww.freeupscmaterials.orgcitizenship? citizen period of 7yearsbeforemaking anapplicationforregistration.twelve months beforemaking an applicationfor registration iseligible for grant ofIndian citizenship.Table 6.2
Table 6.2 Articles Related to Citizenship at a Glance
ArticleNo. Subject Matter5. Citizenship at the commencement of the Constitution6. Rights of citizenship of certain persons who have migrated toIndia from Pakistan7. Rights of citizenship of certain migrants to Pakistan8. Rights of citizenship of certain persons of Indian origin residingoutside India9. Persons voluntarily acquiring citizenship of a foreign State not tobe citizens10. Continuance of the rights of citizenship11. Parliament to regulate the right of citizenship by law
Table 6.3 Citizenship Act (1955) at a Glance (As Amended Upto 2015)
Sections Subject Matter1. Short title2. InterpretationAcquisition of Citizenship3. Citizenship by birthwww.freeupscmaterials.org4. Citizenship by descent5. Citizenship by registration6. Citizenship by naturalization6A. Special provisions as to citizenship of persons covered by theAssam Accord7. Citizenship by incorporation of territoryOverseas Citizenship7A. Registration of Overseas Citizen of India Cardholder7B. Conferment of rights on Overseas Citizen of India Cardholder7C. Renunciation of Overseas Citizen of India Card7D. Cancellation of registration as Overseas Citizen of IndiaCardholderTermination of Citizenship8. Renunciation of citizenship9. Termination of citizenship10. Deprivation of citizenshipSupplemental11. Commonwealth citizenship (Repealed)12. Power to confer rights of Indian citizen on citizens of certaincountries (Repealed)13. Certificate of citizenship in case of doubt14. Disposal of application under sections 5, 6 and 7A14A. Issue of national identity cards15. Revision15A. Reviewwww.freeupscmaterials.org16. Delegation of powers17. Offences18. Power to make rules19. Repeals (Repealed)
Table 6.4 Schedules of the Citizenship Act (1955) at a Glance
Numbers Subject MatterFirstScheduleList of countries related to the Commonwealth Citizenship(Omitted by the 2003 Amendment)SecondSchedule Oath of AllegianceThirdSchedule Qualifications for NaturalisationFourthScheduleList of countries related to the Overseas Citizenship (Omittedby the 2005 Amendment)
NOTES AND REFERENCES citizenship
1. On this date, the permit system for such migration was introduced.2. This provision refers to migration after 1 March, 1947 but before 26January, 1950. The question of citizenship of persons who migrated after26 January, 1950, has to be decided under the provisions of theCitizenship Act, 1955.3. The 8th Schedule of the Constitution recognises presently 22 (originally14) languages.4. This will not apply if he is a student abroad, or is in the service of agovernment in India or an international organisation of which India is amember, or has registered annually at an Indian consulate his intention toretain his Indian citizenship.5. By virtue of Article 371-D inserted by the 32nd ConstitutionalAmendment Act, 1973.5a. Article 371D has been extended to the State of Telangana by the Andhrawww.freeupscmaterials.orgPradesh Reorganisation Act, 2014.6. Article 35-A in the Constitution (Application to Jammu and Kashmir)Order, 1954. This was issued by the President of India under powersconferred on him by Article 370 of the Constitution.7. Annual Report 2015-16, Ministry of Home Affairs, Government of India,p. 262.8. This Table is downloaded from the website of Ministry of Home Affairs,Government of India.
Special Status ofJammu & Ka intro
Kashmir (J&K) is a constituent state of Indian Union and its territoryforms a part of the territory of India. On the other hand, Article 370 in PartXXI of the Constitution grants a special status to it. Accordingly, all theprovisions of the Constitution of India do not apply to it. It is also the onlystate in the Indian Union which has its own separate state ConstitutionâtheConstitution of Jammu and Kashmir.Under the same Part (XXI) of the Constitution, twelve other states1 of theIndian Union also enjoy special status but only in certain minor matters. Onthe other hand, the special status enjoyed by the State of J&K (as mentionedabove) is unparalleled.
ACCESSION OF J&K TO INDIA
With the end of the British paramountcy, the State of Jammu and Kashmir(J&K) became independent on 15 August 1947. Initially its ruler, MaharajaHari Singh, decided not to join India or Pakistan and thereby remainindependent. On 20 October 1947, the Azad Kashmir Forces supported by thePakistan army attacked the frontiers of the state. Under this unusual andextraordinary political circumstance, the ruler of the state decided to accedewww.freeupscmaterials.orgthe state to India. Accordingly, the 'Instrument of Accession of Jammu andKashmir to India' was signed by Pandit Jawaharlal Nehru and Maharaja HariSingh on 26 October 1947.2 Under this, the state surrendered only threesubjects (defence, external affairs and communications) to the Dominion ofIndia. At that time, the Government of India made a commitment that 'thepeople of this state, through their own Constituent Assembly, woulddetermine theinternal Constitution of this state and the nature and extent ofthe jurisdiction of the Union of India over the state, and until the decision ofthe Constituent Assembly of the State, the Constitution of India could onlyprovide an interim arrangement regarding the state.'3 In pursuance of thiscommitment, Article 370 was incorporated in the Constitution of India. Itclearly states that the provisions with respect to the State of J&K are onlytemporary and not permanent. It became operative on 17 November 1952,with the following provisions:1. The provisions of Article 238 (dealing with the administration of Part Bstates) is not applicable to the state of J&K. The state of J&K wasspecified in the category of Part B states in the original Constitution(1950). This Article in Part VII was subsequently omitted from theConstitution by the 7th Constitutional Amendment Act (1956) in thewake of the reorganisation of states.2. The power of Parliament to make laws for the state is limited to: (a)Those matters in the Union List and the Concurrent List whichcorrespond to matters specified in the state's Instrument of Accession.These matters are to be declared by the president in consultation with thestate government. The Instrument of Accession contained mattersclassified under four heads, namely, external affairs, defence,communications and ancilliary matters. (b) Such other matters in theUnion List and the Concurrent List which are specified by the presidentwith the concurrence of the state government. This means that laws canbe made on these matters only with the consent of the State of J&K.3. The provisions of Article 1 (declaring India as a Union of states and itsterritory) and this Article (that is, Article 370) are applicable to the Stateof J&K.4. Besides above, the other provisions of the Constitution can be applied tothe state with such exceptions and modifications as specified by thewww.freeupscmaterials.orgPresident in consultation with the state government or with theconcurrence of the state government.5. The President can declare that Article 370 ceases to be operative oroperates with exceptions and modifications. However, this can be doneby the President only on the recommendation of Constituent Assembly ofthe state.Therefore, Article 370 makes Article 1 and Article 370 itself applicable tothe State of J&K at once and authorises the president to extend other Articlesto the state.
PRESENT RELATIONSHIP BETWEEN J&K AND INDIA
In pursuance of the provisions of Article 370, the President issued an ordercalled the Constitution (Application to Jammu and Kashmir) Order, 1950, tospecify the Union's jurisdiction over the state. In 1952, the Government ofIndia and the State of J&K entered into an agreement at Delhi regarding theirfuture relationship. In 1954, the Constituent Assembly of J&K approved thestate's accession to India as well as the Delhi Agreement. Then, the Presidentissued another order with the same title, that is, the Constitution (Applicationto Jammu and Kashmir), Order, 1954. This order superseded the earlier orderof 1950 and extended the Union's jurisdiction over the state. This is the basicorder that, as amended and modified from time to time, regulates theconstitutional position of the state and its relationship with the Union.4 Atpresent, this is as follows:1. Jammu and Kashmir is a constituent state of the Indian Union and has itsplace in Part I and Schedule I of the Constitution of India (dealing withthe Union and its Territory). But its name, area or boundary cannot bechanged by the Union without the consent of its legislature.2. The State of J & K has its own Constitution and is administered accordingto that Constitution. Hence, Part VI of the Constitution of India (dealingwith state governments) is not applicable to this state. The very definitionof 'state' under this part does not include the State of J&K.3. Parliament can make laws in relation to the state on most of the subjectsenumerated in the Union List and on a good number of subjectsenumerated in the Concurrent List.5 But, the residuary power belongs towww.freeupscmaterials.orgthe state legislature except in few matters like prevention of activitiesinvolving terrorist acts, questioning or disrupting the sovereignty andterritorial integrity of India and causing insult to the National Flag,National Anthem and the Constitution of India. Further, the power tomake laws of preventive detention in the state belongs to the statelegislature. This means that the preventive detention laws made by theParliament are not applicable to the state.4. Part III (dealing with Fundamental Rights) is applicable to the state withsome exceptions and conditions. The Fundamental Right to Property isstill guaranteed in the state. Also, certain special rights are granted to thepermanent residents of the state with regard to public employment,acquisition of immovable property, settlement and governmentscholarships.5. Part IV (dealing with Directive Principles of State Policy) and Part IVA(dealing with Fundamental Duties) are not applicable to the state.6. A National Emergency declared on the ground of internal disturbance willnot have effect in the state except with the concurrence of the stategovernment.67. The President has no power to declare a financial emergency in relation tothe state.8. The President has no power to suspend the Constitution of the state on theground of failure to comply with the directions given by him.9. The State Emergency (President's Rule) is applicable to the state.However, this emergency can be imposed in the state on the ground offailure of the constitutional machinery under the provisions of stateConstitution and not Indian Constitution. In fact, two types ofEmergencies can be declared in the state, namely, President's Rule underthe Indian Constitution and Governor's Rule under the state Constitution.In 1986, the President's Rule was imposed in the state for the first time.10. International treaty or agreement affecting the disposition of any part ofthe territory of the state can be made by the Centre only with the consentof the state legislature.11. An amendment made to the Constitution of India does not apply to thestate unless it is extended by a presidential order.12. Official language provisions are applicable to the state only in so far aswww.freeupscmaterials.orgthey relate to the official language of the Union, the official language ofinter-state and Centre-state communications and the language of theSupreme Court proceedings.13. The Fifth Schedule (dealing with administration and control of scheduleareas and scheduled tribes) and the Sixth Schedule (dealing withadministration of tribal areas) do not apply to the state.14. The special leave jurisdiction of the Supreme Court and the jurisdictionsof the Election Commission and the comptroller and auditor general areapplicable to the state.15. The High Court of J&K can issue writs only for the enforcement of thefundamental rights and not for any other purpose.16. The provisions of Part II regarding the denial of citizenship rights ofmigrants to Pakistan are not applicable to the permanent residents of J&K,who after having so migrated to Pakistan return to the state forresettlement. Every such person is deemed to be a citizen of India.Therefore, the two characteristic features of the special relationshipbetween the State of J&K and the Union of India are: (a) the state has a muchgreater measure of autonomy and power than enjoyed by the other states;and(b) Centre's jurisdiction within the state is more limited than what it haswith respect to other states
FEATURES OF J&K CONSTITUTION
In September-October 1951, the Constituent Assembly of J&K was electedby the people of the state on the basis of adult franchise to prepare the futureConstitution of the state and to determine its relationship with the Union ofIndia. This sovereign body met for the first time on 31 October 1951, andtook about five years to complete its task.The Constitution of J&K was adopted on 17 November 1956, and cameinto force on 26 January 1957. Its salient features (as amended from time totime) are as follows:1. It declares the State of J&K to be an integral part of India.2. It secures justice, liberty, equality and fraternity to the people of the state.3. It says that the State of J&K comprises all the territory that was under theruler of the state on 15 August 1947. This means that the territory of thewww.freeupscmaterials.orgstate also includes the area which is under the occupation of Pakistan.4. It lays down that a citizen of India is treated as a 'permanent resident' ofthe state if on 14 May 1954 (a) he was a state subject of Class I or ClassII, or (b) having lawfully acquired immovable property in the state, hehas been ordinarily resident in the state for 10 years prior to that date, or(c) any person who before 14 May, 1954 was a state subject of Class I orClass II and who, having migrated to Pakistan after 1 March 1947, returnsto the state for resettlement.5. It clarifies that the permanent residents of the state are entitled to all rightsguaranteed under the Constitution of India. But, any change in thedefinition of 'permanent' can be made by the state legislature only.6. It contains a list of directive principles that are to be treated asfundamental in the governance of the state. However, they are notjudicially enforceable.7. It provides for a bicameral legislature consisting of the legislativeassembly and the legislative council. The assembly consists of111members directly elected by the people.8 Out of this, 24 seats are toremain vacant as they are allotted for the area that is under the occupationof Pakistan. Hence, as an interim measure, the total strength of theAssembly is to be taken as 87 for all practical purposes. The councilconsists of 36 members, most of them are elected in an indirect mannerand some of them are nominated by the Governor, who is also an integralpart of the state legislature.8. It vests the executive powers of the state in the governor appointed by thepresident for a term of five years. It provides for a council of ministersheaded by the chief minister to aid and advise the governor in the exerciseof his functions. The council of ministers is collectively responsible to theassembly. Under the original Constitution of J&K (1957), the head of thestate and head of the government were designated as Sadar-i-Riyasat(President) and Wazir-i-Azam (Prime Minister) respectively. In 1965,they were redesignated as governor and chief Minister respectively. Also,the head of the state was to be elected by the state assembly.9. It establishes a high court consisting of a chief justice and two or moreother judges. They are appointed by the president in consultation with theChief Justice of India and the Governor of the state. The High Court ofwww.freeupscmaterials.orgJ&K is a court of record and enjoys original, appelate and writjurisdictions. However, it can issue writs only for the enforcement offundamental rights and not for any other purpose.10. It provides for Governor's Rule. Hence, the governor, with theconcurrence of the President of India, can assume to himself all thepowers of the state government, except those of the high court. He candissolve the assembly and dismiss the council of ministers. TheGovernor's Rule can be imposed when the state administration cannot becarried on in accordance with the provisions of the J&K Constitution. Itwas imposed for the first time in 1977. Notably, in 1964, Article 356 ofthe Indian Constitution (dealing with the imposition of President's Rule ina state) was extended to the state of J&K.11. It declares Urdu as the official language of the state. It also permits theuse of English for official purposes unless the state legislature providesotherwise.12. It lays down the procedure for its amendment. It can be amended by a billpassed in each house of the state legislature by a majority of two-thirds ofthe total membership of that house. Such a bill must be introduced in theassembly only. However, no bill of constitutional amendment can bemoved in either House if it seeks to change the relationship of the statewith the Union of India.
J&K AUTONOMY RESOLUTION REJECTED
On June 26, 2000, in a historic move, the Jammu and Kashmir LegislativeAssembly adopted by voice vote a resolution accepting the report of the StateAutonomy Committee, recommending greater autonomy to the State. TheAssembly sought the following:1. The word 'temporary' in Article 370 to be substituted with 'special'.2. Only defence, foreign affairs, communications and ancillary subjects to bewith the Centre.3. Article 356 not to apply to J&K.4. Election Commission of India to have no role.5. J&K Assembly to have final say on Central role in case of externalaggression / internal emergency.www.freeupscmaterials.org6. No room for All-India Services (IAS, IPS and IFS) in J&K.7. Governor and Chief Minister to be called Sadar-e-Riyasat and Wazir-e-Azam.8. Separate charter of fundamental rights for J&K.9. Parliament's and President's role over J&K to be sharply curtailed.10. No special leave to appeal by the Supreme Court.11. No special provisions for scheduled castes/tribes and backward classes.12. Centre to lose adjudication rights relating to inter-state rivers or rivervalleys.13. No jurisdiction of the Supreme Court in appeals from the High Court incivil and criminal matters.14. Parliament not to be empowered to amend the Constitution and procedurewith respect to J&K.On July 14, 2000, the Union Cabinet rejected as unacceptable the June 26autonomy resolution of the Jammu and Kashmir Assembly, though at thesame time committing itself to a greater devolution of powers to all states.The Cabinet found the June 26 resolution unacceptable because essentially itwas a plea for restoration of the pre-1953 status to the state.The Cabinet was unanimous in its judgement that the June 26 resolutioncould not be accepted, fully or even partially, because it would set the clockback and reverse the natural process of harmonizing the aspirations of thepeople of Jammu and Kashmir with the integrity of the nation.Specifically about Jammu and Kashmir, the Cabinet wanted the people andthe state government to join hands in the endeavour to address the realproblems facing the state: to root out insurgency and cross-border terrorism,and to ensure accelerated development.
GROUP OF INTERLOCUTORS FOR J & K
The Group of Interlocutors for Jammu and Kashmir was appointed by theCentral Government in October 2010 under the Chairmanship of the eminentjournalist Dileep Padgaonkar9. It was tasked to hold-wide - rangingdiscussions with all sections of opinion in Jammu and Kashmir in order toidentify the political contours of a solution to the problems of the state.The Group submitted its report to the Union Home Minister in Octoberwww.freeupscmaterials.org2011. The report is entitled "A New Compact with the People of Jammu andKashmir".The Group did not recommend a pure and simple return to the pre-1953situation. This would create a dangerous constitutional vacuum in the Centrestaterelationship. The clock cannot be set back.Instead, the Group recommended the establishment of a ConstitutionalCommittee to review all Central Acts and Articles of the Constitution of Indiaextended to the state of Jammu and Kashmir after signing of the DelhiAgreement of 195210.The Constitutional Committee should be headed by a distinguished juristwho enjoys esteem and respect in the state and in the rest of the country. Itsmembers should be constitutional / legal experts from the state and the rest ofIndia. Their choice should be acceptable to all stake-holders.In the exercise of its mandate, the Constitutional Committee should bear inmind the dual character of Jammu and Kashmir, viz., that it is a constituentunit of the Indian Union and that it enjoys a special status in the said Union,enshrined in Article 370 of the Constitution of India. It should also bear inmind the dual character of the people of the state, viz that they are both statesubjects and Indian citizens. The review should, therefore, have to determinewhether - and to what extent - the Central Acts and Articles of theConstitution of India, extended with or without amendment to the state, havedented Jammu and Kashmir's special status and abridged the stategovernment's powers to cater to the welfare of its people.The Constitutional Committee should be future-oriented in that it shouldconduct its review solely on the basis of the powers that the state needs toaddress the political, economic, social and cultural interests, concerns,grievances and aspirations of the people in all the three regions of the state -Jammu, Kashmir and Ladakh - and all its sub-regions and communities. Inthis connection, the Committee should also need to reflect on the quantum oflegislative, financial and administrative powers that the state governmentshould delegate to the three regions at all levels of governance - the regional,district and panchayat / municipality.The Constitutional Committee should be requested to complete its workwithin six months. Its recommendations must be reached through consensuswww.freeupscmaterials.orgso that they are acceptable to all stake-holders represented in the StateAssembly and in Parliament. The next step would be for the President, inexercise of the powers conferred by Clauses (1) and (3) of Article 370 of theConstitution, to issue an order incorporating the recommendations of theConstitutional Committee. The order would need to be ratified by a bill inboth Houses of Parliament and by each House in the State Legislature by amargin of not less than two-thirds majority of the total membership presentand voting in each House. It would then be presented to the President forassent. Once this process is over, Clauses (1) and (3) of Article 370 shallcease to be operative and no orders shall be made by the President hereafterunder the said clauses as from the date of the final order.
The recommendations of the Group wrt autonomy of j a& k on certain issues of contention are asfollows
1. Delete the word 'temporary' from the heading of Article 370 and from thetitle of Part XXI of the Constitution. Replace it with the word 'special' asit has been used for other States under article 371 (Maharashtra andGujarat); Article 371A (Nagaland); 371B (Assam); 371C (Manipur);371D and E (Andhra Pradesh); 371F (Sikkim); 371G (Mizoram); 371H(Arunachal Pradesh); 371I (Goa).2. On the Governor: The state government, after consultations withopposition parties, should submit a list of three names to the President.The President can ask for more suggestions if required. The Governorshould be appointed by the President and hold office at the pleasure of thePresident.3. Article 356: The action of the Governor is now justiciable in the SupremeCourt. The present arrangement should continue with the proviso that theGovernor should keep the State Legislature under suspended animationand hold fresh elections within three months.4. Article 312: The proportion of officers from the all-India services shouldbe gradually reduced in favour of officers from the state civil servicewithout curbing administrative efficiency.5. The nomenclatures in English of the Governor and the Chief Ministershould continue as at present. Equivalent nomenclatures in Urdu may beused while referring to the two offices in Urdu.6. Create three Regional Councils, one each for Jammu, Kashmir andwww.freeupscmaterials.orgLadakh. (The latter would no longer be a division of Kashmir). Devolvecertain legislative, executive and financial powers to them. A furtherdevolution of executive and financial powers to Panchayati Rajinstitutions - at the level of a district, a village panchayat, a municipalityor a corporation - would be part of the overall package. All these bodiesshould be elected. Provisions should be made for representation ofwomen, SC/ST, backward clans and minorities. MLAs should be exofficiomembers with voting rights.7. Parliament should make no laws applicable to the state unless it relates tothe country's internal and external security and its vital economic interest,especially in the areas of energy and access to water resources.8. Extend the writ of autonomous and statutory institutions to the state andensure that their functioning conforms to the provisions of theConstitution of Jammu and Kashmir.9. These changes should be harmonised in all parts of the former princelystate. All opportunities for cross-LOC cooperation should be promoted.This would require substantial constitutional changes in PakistanadministeredJammu and Kashmir.10. Take all appropriate measures to regard Jammu and Kashmir as a bridgebetween South and Central Asia.
Table 36.1 The Constitution of Jammu and Kashmir at a Glance
Parts Subject Matter Sections Covered11I Preliminary 1-2II The State 3-5III Permanent Residents 6-10IV Directive Principles of State Policy 11-25V The Executive 26-45VI The State Legislature 46-92VII The High Court 93-113VIII Finance, Property and Contracts 114-123www.freeupscmaterials.orgIX The Public Services 124-137X Elections 138-142XI Miscellaneous Provisions 143-146XII Amendment of the Constitution 147XIII Transitional Provisions 148-158
Table 36.2 Schedules of the J & K Constitution at a Glance
Numbers Subject MatterFirstSchedule Method of Election to the Office of Sadar-i-Riyasat (Omitted)SecondSchedule Emoluments, Allowances and Privileges of the GovernorThirdScheduleSalaries and allowances of the Speaker and Deputy Speaker ofthe Legislative Assembly and the Chairman and the DeputyChairman of the Legislative CouncilFourthScheduleSalaries, allowances and other conditions of service of theJudges of the High CourtFifthSchedule Forms of Oaths or AffirmationsSixthSchedule Regional LanguagesSeventhSchedule Provisions as to disqualification on ground of defectio
Numbers Subject MatterFirstSchedule Method of Election to the Office of Sadar-i-Riyasat (Omitted)SecondSchedule Emoluments, Allowances and Privileges of the GovernorThirdScheduleSalaries and allowances of the Speaker and Deputy Speaker ofthe Legislative Assembly and the Chairman and the DeputyChairman of the Legislative CouncilFourthScheduleSalaries, allowances and other conditions of service of theJudges of the High CourtFifthSchedule Forms of Oaths or AffirmationsSixthSchedule Regional LanguagesSeventhSchedule Provisions as to disqualification on ground of defectio j & k
1. These include Maharashtra, Gujarat, Nagaland, Assam, Manipur, AndhraPradesh, Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa andKarnataka.2. It was accepted by the Governor General of India, Lord Mountbatten, onwww.freeupscmaterials.org27 October, 1947.3. D D Basu, Commentary on the Constitution of India, Prentice-Hall, Vol.v, 5th edition, 1970, p. 512.4. This order was amended in 1963, 1964, 1965, 1966, 1972, 1974 and 1986.5. The Concurrent List was not applicable to the state till 1963. The StateList is not applicable to the state even today.6. Unlike in other states, a proclamation of emergency can be made in J&Kon the ground of internal disturbance also. An emergencydeclared on theground of war or external aggression is directly (i.e., without theconcurrence of the state government, as in the case of other states)applicable to J&K.7. M P Jain, Indian Constitutional Law, Wadhwa, Fourth Edition, 1987, p.435.8. Originally, the strength of J&K Assembly was 100 and this was increasedto 111 in 1987.9. The other two members of the Group were academician Radha Kumarand former Information Commissioner M.M. Ansari.10. This Agreement, along with the Instrument of Accession and Article 370of the Constitution, has been adopted by the Indian Parliament and theConstituent Assembly of Jammu and Kashmir.11. For the subject-matter of each section of the Constitution of Jammu andKashmir, see Appendix-XIV.w