Polity & Governance Flashcards
Preamble of The Indian Constitution:
Salient Points & Ideas
- Sovereign, Socialist, Secular, Democratic Republic of India
- “Socialist” and “Secular” were added in the 42nd CAA by Indira Gandhi
Is the preamble part of the constitution?
- The supreme court in Berubari vs. Union said no, but in Keshavnanda Bharti vs Union, it said that it is part of the constitution and that it can be amended under Art 368. Preamble gives further strength to the idea of “Basic Structure”
Part I: The States & Its Territories
Article 3: New States & Territories
- Empowers Parliament to form a new state or UT by separation or uniting of two states, two UTs, bifurcation of a UT/State.
- Allows to increase, diminish, alter boundaries
- Amendments under Art 2 & Art 3 will naturally lead to amendments in either the 1st or 4th schedule as 1st is for the list of States & UTs, and 4th deals with Rajya Sabha seat allocation.
- This kind of amendment, however, doesn’t count as a CAA per say.
Fundamental Rights: What are the broad categories?
- Natural
- Human
- Constitutional
- Statuatory
Q: Are FRs absolute?
A: NO. They are subject to reasonable restrictions (concept added as an amendment in the 50s. Most general category of reasonable restrictions? Territorial Integrity, Sovereignty, Security.
Further, FRs confer justiciable rights while also constituting restrictions and limitations on the state.
Fundamental Rights: Groupings
How are the FRs grouped in the constitution?
- Right to Equality (Art 14-18)
- Right to Freedom (Art 19-22)
- Right Against Exploitation (Art 23-24)
- Right to Freedom of Religion (Art 25-28)
- Cultural and Educational Rights (29-30)
- Constitutional Remedies (32-35)
Before the list of the FRs, there is a crucial Art 12. What does it entail?
It discusses “What Constitutes a State” when FRs are considered
Includes:
- Government & Parliament of India
- Government & Legislatures of States
- Local and State Authorities such as:
- Municipalities
- Panchayats
- District Boards
- Improvement Trusts
Q: Are the Supreme Court’s tests exclusive when deciding if the actor is an apparatus of the state?
A: NO. Purely indicative and is done case by case to understand whether the actor is Financially, Functionally & Administratively dominated by, or under the control of the government.
Article 13: Laws that are inconsistent with FRs.
This article gives power to one essential part of the Indian polity. Which is it?
Article 13 gives teeth to the constitution by empowering the Supreme Court to act as an upholder and protector of FRs in the country. According to Art 13, the State shall “NOT” take away or abridge FRs.
Art 13 essentially gives birth to Judicial Review.
Q: Is judicial review part of the “Basic Structure” doctrine?
A: YES
Art: 14
Equality Before the Law
The State shall “NOT” deny equality before the law.
Q: Who is Art 14 available to?
A: Any legal personals including statuatory corps, companies
Note: This concept is taken from the US and is similar to the British idea of Rule of Law.
Article 15: Prohibits Discrimination
Against who? What are the categories? Any exceptions?
- Prohibits discrimination against any citizen on: race, religion, caste, sex, place of birth
- Art 15(4): allows for special provisions for socially and economically backward & SC/ST positive discrimination
- CAA 2014 added Art 15(6) to include the idea of “economically weaker sections” or the EWS reservation category. 8lakh per annum is the qualifier.
Q: Does 15(6) apply to minority institutions?
A: NO
Article 16: Prohibits Discrimination in the Employment of Government Office
Article 17: Abolition of Untouchability
Article 18: Abolition of Titles
- The EWS clause under 15(6) is added as 16(4) in Art 16. thereby allowing for EWS positive discrimination in the form of 10% reservation in gov office.
- Untouchability is abolished in all forms (this is the article with NO reasonable restrictions)
- Colonial titles such as Kaiser-e-Hind, Knighthoods etc. are all abolished. This however does not include Civil & Military honours such as Vikram Chakra & Padma awards.`
Art 19-22: Right to Freedom
What are the freedoms entailed?
Any reasonable restrictions?
Any newer additions to list of freedoms?
Why is Article 21 important?
Art 19 : Lists the freedoms and restrictions
Q: Are reasonable restrictions open to Judicial Review
A: YES
Q: Is internet access & privacy a freedom?
A: YES
Article 20: Protection in case of conviction.
- Essentially ensures there is no double jeopardy.
Article 21: VERY important as it entails that No Person shall be deprived of his/her life or personal liberty “EXCEPT” according to procedure established by law.
“Procedure Established by Law” is the same as Due Process of the Law as held in the 1978 Maneka Gandhi case.
Article 21A: Free & Compulsory Education
The State shall provide free and compulsory education to all children of age 6-14 years
Article 22: Important Article that deals with arrests and detention.
What protections given?
What is the period within which one must be presented in front of a magistrate?
Any exceptions?
Article 22 highlights the rights one has when arrested. It says that any person arrested shall be informed about the ground of the arrest, while also not being denied the right to consult/be defended by a legal practitioner of their choice.
Further, the arrested person MUST be brought to the nearest magistrate within a 24hr window.
However, enemy aliens and those detained under preventative detention can lose protections guaranteed under Art 22.
Q: Does preventative detention have a limited window?
A: Yes, 3 months unless approved by an advisory board
Art 23-24: Right Against Exploitation
Art 23: Prohibits 1) traffic in human beings 2) forced labour
Art 24: Prohibits the employment of children in factories. i.e. no child below the age of 14 shall be employed to work in any factory or mine or engaged in any hazardous employment
Art 25-28: Right to Freedom of Religion
Why important?
Any exceptions?
Partial to Minorities?
Art 25: Allows for freedom of conscience and free profession, practice and propagation of religion.
Exception:
- The state can make laws to regulate, restriction any economic, financial, political or secular activity which is associated with religious practice
- The State can provide social welfare and reform or throw open Hindu religious institutions of a public character to all Hindus
- Deems Kirpans as part of Sikh religion
Art 26: Freedom to manage religious affairs
- Subject to public order, morality and health, every religious denomination can a) establish and maintain institutions for religious and charitable purposes, b) manage its own affairs in matters of religion c) own and acquire movable and immovable property d) administer the property according to law
Art 27: Freedom as to the payment of taxes for the promotion of any particular religion
- Prohibits people from compelling one to pay taces, the proceeds of which are specifically appropriated for the religious group.
Art 28: Certain religious educational institutions are allowed to engage in religious instructions. i.e. Government: NOT permitted, Private (aided & unaided) : Allowed, Administered by State as Religious Endowment Act: Permitted in Madrassas & Christian Missionary Schools
Art 29-30: Cultural & Educational Rights
- Protection of interests of minorities
- Right to establish and administer educational institutions
Any recent repeals?
- Art 29 and 30 essentially allow minorities with distinct language script and culture to protect their own. Further, no citizen shall be denied admission into any educational institution maintained by or receiving aid from the State on the grounds of religion, race, caste, language
- Art 31; Was repealed by 44th CAA in 1978 and it was placed under Art 300A.
Q: What is important about Art31B?
A: The 1st CAA in 1951 added the 9th schedule as one to be completely immune from judicial review. However after the IR Coelho case, the SC upheld basic doctine concept and said that after 24th March 1973, that they can be reviewed subject to ground of Basic Doctrine
Article 32: Constitutional Remedies?
What are the Latin Names for the Writ Petitions? What are they? Who are they against? Do you need Locus Standi?
Writ: Locus Standi (Y/N): Against Whom
Habeas Corpus: N: State & Private Individuals
Mandamus: N: Public Authorities
Prohibition: Y : Judicial & Quasi-Judicial
Certiotari: Y: Judicial & Quasi-Judicial
Quo Warranto: N: Public Authorities
Are there rights protected outside Part 3 of the Constitution?
YES: These rights are known as constitutional and legal rights
- No tax shall be levied or collected except by authority of law (Art 265)
- No personal shall be deprived of his property save by authority of law (Art 300-A)
- Trade, commerce and intercourse shall be free throughout Indian territory
- The elections to the Lok Sabha and the SLAs shall be on the basis of adult suffrage (Art 326)
Q: With FRs, the aggrieved party can directly petition to the SC, can one do the same with these rights
A: NO. They have to move the high court by an ordinary suit or under Art 226 (Writ Jurisdiction of the High Court)
Directive Principles of State Policy
What are the key aspects?
Did we borrow from other countries?
Are the justiciable in nature?
- We borrowed this from the constitution of Ireland
- The FRs and DPSPs have common origin but are different due to their justiciability.
- DPSPs are guiding principles for the State in away, and along with the FRs, are called “conscience of the constitution” by Granville Austin.
- They are NON justiciable.
Q: Why are DPSPs philosophically important for India?
A: They laid the foundation for the Welfare State in India which guarantees certain minimum level of access to services such as health, educaiton, and economic security.
DPSP Categories:
Socialistic
Gandhian
Liberal-Intellectualn
Socialistic:
- securing welfare of the people (Art 38)
- proper distribution of material resources of the community
- Equal justice and free legal aid (added by Art 39A of 42nd CAA)
- Security right to work, education
- Humane conditions and maternity relief
- Participation of workers in management of industries (Art43A added by 42nd CAA)
- Promotion of Co-Ops (Art 43B added by 97th CAA)
Gandhian:
- Organize village panchayats (Art 40)
- Living wage, decent standard of life, promote cotton/cottage industries (art 43)
- Free & compulsory education 6-14 yrs (art 43) *ALSO guaranteed by the FRs
- Promote SC/STs
- Enforce prohibition of intoxicating drinks and cow-slaughter and to organize agriculture and animal husbandry on scientific lines (Art 46-48)
Liberal-Intellectual:
- to secure a uniform civil code througout India (Art 44)
- Protection and improvement of the environment and safeguarding of forests and wildlife (Art48A added by 42nd CAA_
- Separate J & E
- protect monuments
- promote intl. peace and security
Important Directives Outside Part 4 (DPSPs)
Are they justiciable?
- To give credence to claims of the SC/ST communities and to take them into consideration with the maintenance of efficiency of administration in the making of the appointments to services and posts in connection with the affairs of the Union or a State (Art 335 in Part XVI)
- Instruction in Mother Tongue (Art 350-A Part XVII)
- Development of the Hindi Language: Art 351 in Part XVII
These directives, like the DPSPs are NON-justiciable in nature. However Judicial Activism has dipped into these DPSPs and we are encouraged to reads these parts of the constitution together.
Fundamental Duties:
What are they?
Where did this concept come from?
Were they originally part of the constitution?
Are they justiciable?
- The FDs were added by the 42nd CAA in 1976 upon the recommendations of the Swaran Singh Committee. They are mentioend in Art 51A of Part IVA of the constitution.
- It is based on the Soviet Model.
- They are NON-justiciable.
- There were originally 10 but in the 86th CAA in 2002, we added one more.
FDs:
- Abide by Const.
- Cherish and follow noble ideals of freedom struggle
- Uphold territorial integrity, unity and sovreignity
- defend country and render national service
- promote harmony and brotherhood while renouncing derogatory practices against women
- value and preserve rich composite culture
- Protect natural environment
- develop scientific temper, humanism
- safeguard public property
- strive towards excellence
- parents & guardians must provide opportunities for education of his/her child (6-14yrs)
The State Apparatus: The President
How are they elected?
Tenure?
Impeachment?
Resignation?
- Executive power of the Union is vested in him/her
- 5 year term
- > 35yrs old & a citizen
- Can resign by writing under his hand and addressing to the VP
- Oath done by the CJI or most senior judge
Impeachment process:
- The charge to impeach the president shall by proffered by either House of Parliament and the other house shall investigate the charge.
- 14 days notice should be given in writing and signed by not less than 1/4 the total number of members of the house
- Impeachment resolution has to be passed by the majority of “NOT LESS THAN 2/3rd the total membership of the house”.
Q: Is the Prez a rubber stamp?
A: Effectively yes, as he/she is always operating on the consul of the PM & COM.
What are the types of majorities used by the Indian parliament when voting?
Are they mentioned in the constitution?
- Absolute, Effective, Simple, Special - 4 Types
2. They are not mentioned explicitly in the constitution
Absolute Majority
It refers to a majority of more than 50% of the total membership of the house. For example, as the total membership of Lok Sabha is 545, an absolute majority in Lok Sabha means – 50% of 545 plus 1, ie. 273. In the normal business of the Parliament or State Legislature absolute majority, is not generally used. But this majority is used during the general election, for the formation of government at Center and States.
Effective Majority
Effective Majority of the house means more than 50% of the effective strength of the house. This implies that out of the total strength, we deduct the vacant seats. When the Indian Constitution mentions “all the then members”, that refers to the effective majority.
For example, in Rajya Sabha, out of the total strength of 245 members if there are 45 vacancies, then the effective strength of the house is 200. Then the effective majority is 50% of 200 plus 1, ie 101.
Effective Used In:
- Removal of Vice-president in RS – Article 67(b).
- Removal of Speaker and Deputy Speaker of Lok Sabha and State Legislative Assembly.
Simple Majority AKA Functional Majority/Working Majority
This refers to the majority of more than 50% of the members present and voting.
The simple majority is the most frequently used form of majority in Parliamentary business. When the constitution or the laws do not specify the type of majority needed, the simple majority is considered for voting.
Example: On a particular day in the LS, out of the total strength of 545, 45 were absent and 100 abstained from voting on an issue. So only 400 members were present and voting. Then the simple majority is 50% of 400 plus 1, ie. 201.
*Ordinary bills need to be passed with a simple majority in both Houses of the Parliament before it is sent to Indian President for his assent.
Cases where the simple majority is used:
To pass Ordinary/Money/Financial bills. To pass Non-Confidence Motion/Adjournment Motion/Censure Motion/Confidence Motion. For the removal of Vice President majority required in Lok Sabha is the simple majority – A67(b). To declare a financial emergency. To declare a state emergency (President’s rule). Election of Speaker/Deputy Speaker of Lok Sabha and State legislatures. ****Constitution Amendment Bill under Article 368 which needs to be ratified by states, require only simple majority at State Legislatures (described in detail in other flashcard)
Type 1 – Special Majority as Per Article 249.
Special Majority as Per Article 249
Special majority as per article 249 requires a majority of 2/3rd members present and voting. For example, if out of the 245 members in Rajya Sabha, if only 150 are present and voting, then the special majority required as per article 249 would be 101.
Cases where special majority as per article 249 is used:
To pass the Rajya Sabha resolution to empower the parliament to make laws in the state list. (valid up to 1 year, but can be extended any number of times).
Type 2 - Special Majority as Per Article 368
Special majority as per article 368 requires a majority of 2/3rd members present and voting supported by more than 50% of the total strength of the house. This type of majority is used for most of the Constitutional amendment bills. To pass a constitution amendment bill in Rajya Sabha, in addition to getting the support of 123 members, the bill should be favoured by more than 2/3rd of the members present and voting.
Cases where special majority as per article 368 is used:
To pass a constitutional amendment bill which does not affect federalism. Removal of judges of SC/HC. Removal of CEC/CAG. Approval of national emergency requires special majority as per Article 368 in both houses. Resolution by the state legislature for the creation/abolition of Legislative Council (Article 169).
Type 3 - Special Majority as Per Article 368 plus State ratification
This type of special majority is required when a constitutional amendment bill try to change the federal structure. Special majority as per article 368 plus state ratification requires a majority of 2/3rd members present and voting supported by more than 50% of the state legislatures by a simple majority. A good example would be the bill which introduced the National Judicial Appointments Commission (NJAC). It required the support of at least 15 state legislatures out of the 29 states.
Cases where special majority as per article 368 plus state ratification is used: To pass a constitutional amendment bill which affects federalism like the position of High Court Judges.
Type 4 - Special Majority as Per Article 61
Special majority as per article 61 requires a majority of 2/3rd members of the total strength of the house. In Lok Sabha, the special majority as per article 61 is 364 while in Rajya Sabha, the special majority as per article 61 is 164.
Cases where special majority as per article 61 is used: For the impeachment of the Indian President.
