Municipality

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Municipality

74th Constitutional Amendment added Articles 243P to 243ZG and Schedule 12 which deals with provisions related to Municipality.

Historical Perspective

1687	First Municipal Corporation in Madras setup
1726	Municipal Corporation setup in Bombay and Calcutta
1870	Lord Mayo’s Resolution on Financial Decentralisation visualised Local Self Government Institutions
1882	Lord Ripon‘s Resolution on Self Government . He is called Father of Self Government . But system wasn’t elective in nature and hence criticized
1910s	Royal Commission on Decentralisation headed by Charles Hobhouse recommended Financial Decentralisation but due to World War I , nothing substantive came out of it.
1919	Dyarchy at the State Level started in which all subjects were divided into Reserved and Transferred . Panchayati Raj and Municipality were in Transferred Subjects which were to be headed by Indian Ministers. But in reality, power of control was still in the hands of British government
1935	Provincial Autonomy to States and since Local Government was State Subject, it came in control of Indians. But State Governments lacked resources and time, hence revolutionary changes weren’t introduced .

Constitutionalisation process

Rajiv Gandhi	In 1989 introduced 65th Constitutional Amendment(Nagarpalika) Bill ,passed in Lok Sabha but failed in Rajya Sabha
VP singh	November 1989 ; but Government lapsed
PV Narsimha Rao	Finally Constitutionalised it with 74th Constitutional Amendment

74th Amendment Act,1992

1 . Three types of Municipalities

Nagar Panchayat	Transitional area between Urban and Rural
Municipal Council	Smaller Urban Area
Municipal Corporation	Larger Urban Area

2. Composition

All members of Municipality to be elected directly
State Legislature may provide for
- Manner of election of Chairperson of Municipality
- May provide for representation to persons having special knowledge in Municipal Administration without right to vote, MP and MLA from that area

3. Ward Committee

Ward Committees consisting of one or more wards within territorial area of Municipality having population of 3 lakh or more to be constituted

2nd Administrative Reforms Commission has criticized practice of clubbing together more than one ward to form Ward Committees which represent population of more than 3 Lakh (eg in Mumbai, each committee represent around 7 Lakh population) . Also this leads to system of Spoil Sharing with Chairmanship rotating between different Ward Heads. Commission has proposed alternate scheme .

4. Reservation of seats

SC & ST	Reservation to Members and Chairpersons in proportion of their population
Women	Atleast 33.3% seats reserved (including the seats reserved for woman in SC/ST)
OBC	State legislature can reserve seats for them

5. Duration

Term of 5 years
If dissolved earlier new elections should be held within 6 months (and hold office for remaining part of the tenure)

6. State Election Commission (SEC)

Under Article 243 (K) and 243 (ZA) , State Election Commissioner has been made responsible for conducting elections of Urban and Rural Local Bodies .
Election Commissioner to be nominated by Governor at state level
Vested with powers to superintend elections of municipality and making electoral rolls etc

Role of State Election Commission

Preparation of Electoral Roll
Conducting elections of Panchayati Raj Institutions and Municipality elections
Implement Code of Conduct so that illegal activities and electoral malpractices can be controlled.
Recommending State Government to give Officers on deputation for conducting elections

7. Finance

State legislature may authorize Municipalities to levy & collect property tax, duties, tolls & fees or assign municipality taxes or give grant in aid but ceiling and procedure to same can only be decided by State legislature
After 5 years , Finance Commission to be formed by Governor to review the Financial Position of Municipality and suggest method to distribute taxes

8. Audit & account

State legislature may make provisions wrt maintenance of accounts by municipality and auditing of such accounts

9. Application to Union Territories

President can direct to implement these provisions in UTs with modifications

10 . Exempted areas

Not apply to Scheduled Areas & Tribal Areas and shall not affect powers of Gurkha Hill Council

11. 12th Schedule

Contain 18 functional items (29 – in case of Panchayats) placed within purview of Municipalities
1. Urban planning including town planning.
2. Regulation of land-use and construction of buildings.
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and, commercial purposes.
6. Public health, sanitation conservancy and solid waste management.
7. Fire services.
8. Urban forestry protection of the environment and promotion of ecological aspects.
9. Safeguarding the interests of weaker sections of society, including handicapped & mentally retarded.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
12. Provision of urban amenities and facilities such as parks, gardens, play-grounds
13. Promotion of cultural, educational and aesthetic aspects.
14. Burials and burial grounds; cremations, cremation grounds and electric crematoriums.
15. Cattle ponds; prevention of cruelty to animals.
16. Vital statistics including registration of births and deaths.
17. Public amenities including parking lots, bus stops and public conveniences.
18. Regulation of slaughter houses & tanneries

But provision is – powers may be devolved to enable them to carry responsibilities conferred upon them in Schedule 12 & is not a mandatory provision
There appear to be certain incongruities in the Twelfth Schedule and several matters listed in the Eleventh Schedule that ought to have been included, have been omitted inadvertently.

Types of Urban bodies

8 types of Urban Local Bodies have been created in India

1 . Municipal Corporation

For big cities like Delhi, Mumbai, Kolkata, Hyderabad & others
Created by Acts of Legislative Assembly in State & act of Parliament in Union Territory
Has three authorities in it

Council	– Deliberative & Legislative body – Consist of Councillors directly elected by people + few nominated members having knowledge of Municipal Administration – Reservation according to 74th Amendment for SC,ST & women – Council is headed by Mayor (can be elected by majority vote or directly . Not Uniform in all States . He is ornamental head )
Standing committee	– Council is too large . Hence, Standing Committees created to facilitate working – Deal with public work, education , health, finance etc
Municipal commissioner	– Chief Executive Officer : Responsible for implementation of decisions of Council & standing committee – Appointed by State & is generally an IAS

2. Municipality

For administration of small cities
Established by State laws in states & law of Parliament in UTs
Known by various names like Municipal Council, Municipal Committee, Board etc
Has same three organs like Municipal Corporation i.e. Council, Standing Committee & Chief Executive Officer but Council is headed by Chairman & unlike Mayor he has all the Executive Power

3. Notified Area Committee

For administration of two types of areas
- Fast developing due to industrialisation
- Not fulfill all the conditions to form Municipality but are important for state
Established by state notification in state gazette & those provisions are valid which are notified by state in gazette
Entirely nominated body + non statutory body

4. Town Area Committee

For administration of small town
Created by State Legislation & May be wholly elected or partially elected partially nominated
Semi- Municipal body & entrusted with limited functions like drainage, roads etc

5. Cantonment Board

For administration of civilian population in Cantonment Area
Setup under Cantonment Act, 2006 by Parliament(no State Act)
Total 63 Cantonments in India & divided to 4 categories

Category I	Above 50,000
Category II	10,000 to 50,000
Category III	2500 to 10,000
Category IV	Below 2500

Partly nominated & partly elected
Commanding Officer of area is Ex-Officio President of board
Functions performed by the Cantonment Board are similar to those of Municipality

6. Township

Established by large enterprise to provide civic amenities to its staff & workers who live in housing colonies built near plant
Enterprise appoint town administrator to look after administration of township
No elected members & is extension of bureaucratic structure of enterprise

7. Port Trust

Established in Port areas like Mumbai, Kolkata, Chennai etc
To manage & protect ports and to provide civic amenities
Created by act of Parliament and perform functions similar to those of Municipality

8. Special Purpose Agency

These are function based & not area based committees
Eg : Town Improvement Trust, Urban Development Authorities, Water Development Authorities,Pollution Control Boards etc
Are either Statutory Bodies or can be created by Department Executive Resolution
Are not subordinate to Municipal Bodies & act independently in functions allotted to them

Topic : Directly Elected Mayors

2nd ARC	Extensively discussed this topic and recommended Directly Elected Mayors with fixed tenure of 5 years
2016	Shashi Tharoor introduced Private Member Bill to introduce Directly Elected Mayors

Present System

Chairperson/Mayor in urban local government in most States enjoys primarily a ceremonial status. In most cases, the Commissioner, appointed by the State Government, has all the executive powers.
Presently, there is not a uniform system for election of Mayors.
- In most major States, the Chairperson is indirectly elected by the elected Councillors.
- In Madhya Pradesh, Tamil Nadu and Uttar Pradesh , Chairperson is directly elected by the voters of the city.
Term of Mayor isn’t uniform in whole country either
- 5 years in Kerala, Rajasthan, Tamil Nadu etc
- 1 year in Assam, Delhi, Haryana etc
- 2.5 years in Gujarat and Maharashtra

Examples from other Cities

Mayors of New York and London are popularly elected by direct vote every four years.
Mayor of Toronto is elected by direct popular vote once in three years.

In almost all these cities, the city government is a powerful institution with very real and effective role in the management of most aspects of the city

Various Contexts to decide whether we should adopt system of directly elected Mayors or not

1 . Stability

Indirectly Elected	System prone to horse trading
Directly Elected	Fixed tenure and cannot ordinarily be removed from office by the Councillors

2. Accountability

Indirectly Elected	Held accountable by Councillors for all decisions
Directly Elected	Abuse of authority by the Mayor with a fixed tenure cannot be easily checked.

3. Cohesion

Indirectly Elected	No logjam between the Council and Executive Mayor.
Directly Elected	It is possible that the Mayor and a majority in the Council may belong to two different parties. This may lead to lack of cohesion causing delays and even paralysis.

4. Representation

Indirectly Elected	When a Councillor elected to represent a ward is elected as the Mayor indirectly, often it is difficult to enlarge his/her vision for the whole city.
Directly Elected	Direct popular mandate gives the Mayor the legitimacy to represent and speak for the whole city.

5. Leadership Development

Indirectly Elected
Directly Elected	In the pre-independence era, great freedom fighters Chitta Ranjan (CR) Das & Netaji Subhas Chandra Bose were Mayors which proved stepping stone in becoming National Leaders Therefore direct election of the Mayor, is an important source of recruitment of talent into public life and leadership development.

Considering above Pros and Cons, 2nd ARC recommended that it is desirable to choose the Mayors/Chairpersons through popular mandate in a direct election.

Other suggestion – Instead of directly electing Mayor, Indirect election in which members of Council elects Mayor (as is the present case) but all the Executive Powers can be vested in Mayor can also be considered (instead of Municipal Commissioner) . This will be more in line with our Parliamentary Government at State and Center level as well.

District Planning Committee

Under provisions of Constitution, All districts have to constitute District Planning Committee
Function : To consolidate plan prepared by Panchayats and Municipalities for District as whole
State Legislature can also make provisions for
- Composition of Committees
- Manner of election of members of such committees
- Manner of election of Chairperson
4/5 members should be elected from Panchayats and Municipalities in proportion of Rural and Urban population
Chairperson to forward development plan to state government

Metropolitan Planning Committee

All Metropolitan Areas to constitute Metropolitan Planning Committee
Functions : To consolidate plan prepared by Panchayats and Municipalities for area as whole
State legislature can also make provisions for
- Composition of Committees
- Manner of election of members of such committees
- Manner of election of chairperson
2/3 members should be elected from Panchayats and Municipalities in proportion of rural and urban population

Discussion : Issues with Panchayati Raj Institutions (ie Rural and Urban both)

Even after the passing of the 73rd and 74th Constitutional Amendments, the transfer of funds, functions and functionaries (3Fs) has been nominal in most States with notable exceptions such as Kerala.

Lack of Finance : Discussed below in detail

Functions not devolved : Although functions of Union & state are clearly defined in 7th Schedule but that of Panchayati Raj Institutions are in Schedule XI & Schedule XII with option given to States to devolve these functions at their will. 2nd ARC Suggestion to remove this anomaly,
- Seventh Schedule should be amended by adding one more list of Local Governments & define functions to be performed by Panchayati Raj Institutions in 7th Schedule itself.

There is an acute shortage of skilled staff in Panchayati Raj Institutions .
- Programmes to give proper training to employees of Municipalities can be answer .
- Restructuring of Bureaucracy keeping in view the requirements of Third Rung of Government is long overdue

Central Programs like Smart Cities Program which mandates the creation of special purpose vehicles (SPVs) for Smart Cities which encroaches governance area of Municipalities

Existence of Parastatals : Parastatals are institutions like District Rural Development Agency (DRDA), District Health Society (DHS) etc formed for delivery of specific services. Activities performed by many of these organisations are in the matters in 11th & 12th Schedule and their separate existence with considerable fund and staff , is an impediment to effective functioning of local government .

Lack of credible data at city level on jobs, investments or tax collections. Hence, well informed policy cant be formed

Election expenses and code of conduct to be better regulated and more powers should be given to the State Election Commission to do the same. Most of the Municipal Elections get rigged

Fodder : February 2016 – Municipal Corporation of Delhi (MCD) ran out of funds to pay salaries to its staffs. As a reaction, sanitation workers went on strike which created conditions of uncleanliness on Delhi roads.

Discussion : Financial Crunch of Municipalities

Main Committees regarding this

14th Finance Commission
2nd ARC
Insufficient local revenue generation was also highlighted by Economic Survey 2017-18 as ‘Low Equilibrium Trap’, local bodies appear to be not collecting revenues from taxes to the extent they can

Mention these in answers.

Data to substantiate financial crunch of Municipalities

	India	Europe
Local Government Expenditure out of Total Expenditure consisting Union, State & Local	7%	24%

Issues with Municipal Finance

Improper Devolution of Taxes : since it wasn’t necessary condition , most of the states haven’t devolved taxation powers.
Issues with implementation of State Finance Commission (SFC) Recommendations: States don’t accept the recommendations of State Finance Commissions .
Tied Fund / No Discretion : Major portion of the grants both from Union as well as the State Governments is scheme specific. Panchayats have limited discretion and flexibility in incurring expenditure
Lack of Data: due to poor documentation of land and property, there is leakage in land tax that can be realised
Absence of Taxation leading to lesser Accountability : in absence of robust Taxation System at local levels, local government is losing its legitimacy.

Way Forward to increase finances

Property tax :
- Proceeds of the Property Tax should be given to Municipalities . Municipalities are best suited to collect and use that tax because people of area paying Property tax can hold Municipality accountable to use that tax properly.
- Frequent revision of Property Tax according to Inflation
- Other problems :
  - The boundaries of municipal bodies are not expanded to keep pace with the urban sprawl;
  - State laws often provide for exemption to a number of categories of buildings such as those belonging to religious or charitable institutions
Professional tax :
- Increase from 2500 to 12,000 & give this tax to local bodies as has been done by Kerala & TN . Professional tax can be levied by State Legislature or Municipalities but its maximum limit can be decided by Parliament.
- For some cities, Professional tax is the most important source of income after property tax. In the Corporation of Chennai, for instance, it contributes Rs.200 crore annually, half as much property tax.
Expand Entertainment Tax
- Entertainment tax net to be expanded : cable , net – cafè , boat rides should be included
Amend Article 285(1) – Union Properties can’t be taxed by State /Local Bodies . 14th Finance Commission recommended that some money should be given in compensation for their loss
Look for Non Tax Revenue
- Municipalities should look for Non Tax Revenue (as Railways is doing) . Eg : By renting the walls of its buildings to be used for advertisement
Municipal Bonds
- For the future projects like Smart City etc large investment is needed in the cities. Government is looking towards Municipal Bonds for this
Documentation of good practices: NITI Aayog can be roped in to keep inventory of local and international good practices and aid in their implementation.
Land Leasing : Local Bodies have ownership of large chunk of lands. This can be used by Local Bodies to generate funds
- Many cities in China (eg Shanghai) have financed more than half of their infrastructure investment from land leasing
Value Capture Financing : city governments raise resources by tapping a share of increase in value of land and other properties like buildings resulting from public investments and policy initiatives, in the identified area of influence.

Panchayati Raj

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Panchayati Raj

Concept of local self government is not new to our country and there is mention of community assemblies in the Vedic texts. The Greek Ambassador, Megasthenes, who visited the court of Chandragupta Maurya in 303 B.C. described the City Council which governed Pataliputra – comprising six committees with 30 members. Similar participatory structures also existed in South India. In the Chola Kingdoms, the village council, together with its sub-committees and wards, played an important part in administration, arbitrated disputes and managed social affairs. They were also responsible for revenue collection.

History and Evolution

1 . Lord Mayo’s Resolution of 1870

This started the work of decentralization in India.

2. Lord Rippon’s Resolution of 1882

Laid foundation of Local Self Government in Rural India (called father of Self Government in India)
Passed in 1885 as Bengal Local Self Government Act
Although Panchayats weren’t democratic institutions but consisted of government nominated members

3 . Gandhi vs Ambedkar and Constitutional Assembly

They differed in their idea towards Panchayati Raj

Ambedkar argued in the Constituent Assembly that caste oppression can’t be weakened by Panchayats but Gandhian members differed from him

Then ultimately Panchayati Raj was given position in Directive Principles as Article 40 i.e. state shall take all steps to organise village Panchayats and endow them with such power & authority as may be necessary to enable them as units of Self Governance
Along with that turmoil due to the Partition resulted in a strong unitary inclination in the Constitution. Nehru himself looked upon extreme localism as a threat to unity and integration of the nation.

Note – Urban Local Bodies don’t find mention here and Constitution makers had only vision of Gram Swaraj in mind with least focus on Urban Local Bodies.

4. Balwant Rai Mehta Committee

Constituted in January ,1957 and submitted report in November ,1957
To examine working of Community Development Program and National Extension Service and suggest measures for their better working
Recommendation – Establishment of scheme of democratic decentralization which ultimately came to be known as Panchayati Raj to do planning and development at local level.
Recommendations were accepted by National development Council but it didn’t insist on single pattern and left it to state to chose their pattern
Rajasthan first to implement . Till 1960 almost all states implemented

5. Ashok Mehta Committee

Constituted in December 1977 by Janata Government
To revive and strengthen the declining Panchayati Raj System
Main recommendations include
- 3 Tier System to be replaced with 2 Tier System with Zila Parishad at district level and Mandal Panchayat below it with population of 15,000
But Janata Government collapsed and no step taken on this report

6. GVK Rao Committee

Committee on Administrative Arrangement for Rural Development & Poverty Alleviation
By Planning Commission in 1985
Committee concluded that development process was gradually bureaucratised and divorced from Panchayati Raj
Hence, Panchayati Raj institutions must be revitalized and basic decentralised planning function should be done at District Level with District Collector Head of Committee

7. LM Sanghavi Committee

1986 by Rajiv Gandhi government
Titled – Revitalisation of Panchayati Raj Institution for Development
Main recommendations were
- Constitutionalisation of Panchayati Raj
- Establishment of Nayaya Panchayats
- Villages to be reorganised so that Gram Panchayats become more viable
- Emphasis on importance of Gram Sabha

8. PK Thungon Committee

Formed in 1989
P.K.Thungon Committee recommended
- constitutional recognition for the local government bodies
- A constitutional amendment to provide for periodic elections to local government institutions, and enlistment of appropriate functions to them, along with funds

9. Constitutionalisation process

Rajiv Gandhi	In 1989 introduced 64th Constitutional Amendment ,passed in Lok Sabha but failed in Rajya Sabha
VP singh	Introduced it in November 1989 ; but government lapsed
*PV Narsimha Rao*	*Finally constitutionalised it with* *73rd Constitutional Amendment in 1992*

73rd Constitutional Amendment Act

1 . New things added

Part IX
Article 243 to 243 O
Schedule XI – 29 functions

(But provision is – powers may be devolved to enable them to carry responsibilities conferred upon them in Schedule 11. It is not a mandatory provision)

2 . Gram Sabha

Gram Sabha is assembly consisting of all persons registered in electoral rolls.
Gram Sabha to be foundation of Panchayati Raj.

2.1 Functions & Importance of Gram Sabha

Decide the Beneficiary group for particular scheme .
Examining the annual statement of the accounts and audit report of Gram Panchayat.
Can check any government document.
Summon any Government employee as it is given status of Civil Court.
Can vote on budget of Panchayati Raj Institution and programmes run by Panchayat.
Mobilisation of voluntary labour and conducting community welfare programmes.

Hence, Gram Sabha act as Village Parliament wrt Panchayati Raj System.

2.2 But Gram Sabhas are not performing its role due to following reasons (according to 2nd ARC)

Meetings not conducted at regular time (although 4 meetings are needed to be conducted in every 6 months)
There isn’t proper infrastructure like Meeting Hall etc for working of Gram Sabha.
Due to Caste System and value system of villagers, people don’t speak against elders .
Bureaucracy also remains apathetic to the demands of Gram Sabha
People don’t know their rights and how to exercise them

2.3 Ways to make Gram Sabhas more efficient (by 2nd ARC)

Funds of MPs and MLAs (MPLADs & MLALADs) should be used to make infrastructure for working of Gram Sabha . According to calculations of 2nd ARC, fund of one year is enough for this.
If Bureaucracy try to suppress critical voice raised by Gram Sabha, exemplary punishment should be awarded considering it attack on democracy.
Recognise importance of Civil Society organisations in making Gram Sabhas effective. Eg : Rajasthan’s Mazdoor Kisan Shakti Sangathan’s Jan Sunvai initiative.

3. Three tier system

Panchayats at village , intermediate and district levels through out country
2018 : Arunachal Pradesh has passed a bill to do away with intermediate level of the three-tier Panchayati Raj system, and set up a two-tier system in the state because Constitution enables a state having less than 20 lakh population not to have the intermediate level, and Arunachal has a population of 13.84 lakh

4. Elections in Panchayati Raj Institution

Members at all 3 levels to be elected by direct voting
Election of head

Intermediate and District	Indirectly( by and from among the elected members)
Village	As *State Legislature will make law*

Courts cant interfere in electoral matters of Panchayat (anything related to delimitation of constituencies & allotment of seats to such constituencies )

5. Reservation of seats

SC & ST	Reservation to Members and Chairpersons proportional of their population
Women	Atleast 33.3% ie 1/3rd seats reserved (separately in seats reserved for SC/ST 1/3 should be for woman belonging to SC/ST) for members and chairpersons
OBC	State Legislature can reserve seats for them

6. Duration of Panchayat

Term of Panchayat is 5 years
If dissolved earlier, new elections should be held within 6 months

7. State Election Commission (SEC)

Election Commissioner to be nominated by Governor at state level .
Election Commission can be removed in manner similar to removal of Judge of High Court
Vested with powers to superintend elections of Panchayats and making electoral rolls etc
Qualifications and Terms of Service (like age of retirement) etc are to be decided by State via Act

Suggestions of 2nd Administrative Reforms Commission (ARC) regarding SECs

To ensure independence of the State Election Commission, appointment of the SEC should be done by a collegium comprising the Chief Minister, Chief Justice of the High Court and the Leader of Opposition in the Legislative Assembly.
Uniform criteria need to be evolved and institutionalised regarding the qualifications of appointment, tenure of office and age of retirement. Commission is of the view that a uniform tenure of 5 years subject to a age limit of 62 years as is applicable to the judges of High Courts would be appropriate
Institutional mechanism should be created to bring the Election Commission of India and SECs on a common platform for coordination, learning from each other’s experiences and sharing of resources.

8. Finance

State Legislature can authorise Panchayat to collect taxes or assign panchayat taxes or give grant in aid
After 5 years Finance Commission to be formed by Governor to
- Review the financial position of Panchayats
- Suggest method to distribute taxes
- Determine taxes to be assigned to Panchayats
- Grant in aid to Panchayats from Consolidated Fund of State

9. Audit & Account

State legislature may make provisions wrt maintenance of accounts by Panchayats and auditing of such accounts

10. Exempted States & Areas

*States*	*J&K, Nagaland , Mizoram and Meghalaya*
*Other areas*	*Scheduled and Tribal Areas , Hill area of Manipur for which District Council exist and Darjeeling District of West* Bengal**

Parliament can extend provisions of Act with certain modifications to schedule areas and for this PESA ACT,1996 enacted.

11. Eleventh Schedule

Consist of 29 functional items placed within purview of panchayats
1. Agriculture, including agricultural extension.
2. Land improvement, implementation of land reforms, land consolidation and soil conservation.
3. Minor irrigation, water management and watershed development.
4. Animal husbandry, dairying and poultry.
5. Fisheries.
6. Social forestry and farm forestry.
7. Minor forest produce.
8. Small scale industries, including food processing industries.
9. Khadi, village and cottage industries.
10. Rural housing.
11. Drinking water.
12. Fuel and fodder.
13. Roads, culverts, bridges, ferries, waterways and other means of communication.
14. Rural electrification, including distribution of electricity.
15. Non-conventional energy sources.
16. Poverty alleviation programme.
17. Education, including primary and secondary schools.
18. Technical training and vocational education.
19. Adult and non-formal education.
20. Libraries.
21. Cultural activities.
22. Markets and fairs.
23. Health and sanitation, including hospitals, primary health centers and dispensaries.
24. Family welfare.
25. Women and child development.
26. Social welfare, including welfare of the handicapped and mentally retarded.
27. Welfare of the weaker sections, and in particular, of the Scheduled Castes and the Scheduled Tribes.
28. Public distribution system.
29. Maintenance of community assets

(But provision is – powers may be devolved to enable them to carry responsibilities conferred upon them in Schedule 11. It is not a mandatory provision)

12. Compulsory Provisions

Organisation of Gram Sabha in village or group of villages
Establishment of Panchayat at village, intermediate & district
Direct election to all seats at all levels
Indirect election of Chairman at Intermediate & District level
21 years – minimum age for contesting elections
Reservation of seats (for Members & Chairperson) for SC/ST at all three levels , 1/3rd reservation for woman for Members & Chairperson
Tenure =5 years & holding elections within 6 months if dissolved earlier
Establish State Election Commission
Constitution of State Finance Commission every 5 years

13. Voluntary Provisions

Giving representation to MP & MLA in Panchayats
Providing reservation to OBC
Making them autonomous bodies
Devolution of powers & responsibilities upon Panchayats to prepare plans for economic development & social justice
Granting Financial Powers to Panchayats

Panchayat Samiti

Second or middle tier of the Panchayati Raj
Provides a link between Gram Panchayat and a Zila Parishad.
Strength depends on the population in a Samiti area.
Some members are directly elected. Sarpanchs of Gram Panchayats are ex-officio members of Panchayat Samitis. However, all the Sarpanchs of Gram Panchayats are not members of Panchayat Samitis at the same time. The number varies from State to State and is rotated annually. It means that only chairpersons of some Gram Panchayats in a Samiti area are members of Panchayat Samiti at a time. In some Panchayats, members of Legislative Assemblies and Legislative Councils as well as members of Parliament who belong to the Samiti area are co-opted as its members.
Chairpersons of Panchayat Samitis are, elected indirectly- by and from among the elected members

Functions

Panchayat Samitis are at the hub of developmental activities. They are headed by Block Development Officers (B.D.Os).
Implementation of some specific plans, schemes or programmes to which funds are earmarked. It means that a Panchayat Samiti has to spend money only on that specific project.

Zila Parishad

Uppermost tier of the Panchayati Raj system.
Institution has some directly elected members whose number differs from State to State as it is also based on population.
Chairpersons of Panchayat Samitis are ex-officio members of Zila Parishads
Members of Parliament, Legislative Assemblies and Councils belonging to the districts are also nominated members of Zila Parishads.
Chairperson of a Zila Parishad, called Adhyaksha or President is elected indirectly- by and from among the elected members thereof. The vice-chairperson is also elected similarly.
Zila Parishad meetings are conducted once a month. Special meetings can also be convened to discuss special matters. Subject committees are also formed.

Functions

Links Panchayat Samitis within the district. It coordinates their activities and supervises their functioning
It prepares District Plans and integrates Samiti Plans into District Plans for submission to the State Govt
Zila Parishad looks after development works in the entire district

Nyaya Panchayats

Gram Nyayalaya Act 2008

It came into force on 2 October 2009
It mandates establishing Gram Nyayalayas to make justice easily accessible to the rural population and dealing with the backlog of cases by making courts available at Panchayat level and dispose the work by going to the villages.

Salient Features

Each Gram Nyayalaya is a court of Judicial Magistrate of the first class, appointed by state governments
Established for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district.
Functions as a mobile court and exercises the powers of both Criminal and Civil Courts.
An appeal against a judgement of the Gram Nyayalaya can be taken to Session Courts in criminal case and District Courts in Civil cases.

Devolution Index

Progress in effective decentralisation of governance is not uniform across all states
Ministry of Panchayati Raj asked National Council of Applied Economic Research(NCAER) to develop working devolution index to measure how States are performing in process of devolution
Scale ranges from 0 to 1
Note = Kerala scores highest (Kerala model of Panchayati Raj)

Rashtriya Gram Swaraj Abhiyan (RGSA)

2018 : Government launched Rashtriya Gram Swaraj Abhiyan on the Panchayati Raj Day.

Main features

Revamped version of Rajiv Gandhi Panchayat Sashaktikaran Abhiyan
It is a centrally sponsored scheme
Aims at making rural local bodies self-sustainable, financially stable and more efficient.
Strengthening Gram Sabhas to function effectively as the basic forum of people’s participation
Activities under the scheme will be aligned for achieving the SDGs with main thrust on Panchayats identified under Mission Antyodaya and 115 Aspirational districts

Critical Analysis of Panchayati Raj

# Pros of Panchayati Raj

Some of the most important schemes like NREGA & NRHM are implemented through Panchayati Raj Institution.
Bottom up approach of development achieved which is less wasteful and keep in mind local needs of people. Social Audits done by Gram Panchayats have increased the efficacy of outcomes of funds.
There are about 2.4 Lakh Panchayati Raj Institutions and number of persons elected in them are 36 lakh in Panchayats & Nagapalikas (even higher than population of Norway )
In terms of empowerment of woman , it is the greatest experiment taken by any democracy in the world . More than 10 Lakh woman are elected through Panchayati Raj Institutions
SC/ST/ OBC have been given reservation . This has helped in breaking the old hierarchy in villages & played part in undermining the institution of caste

# Cons of Panchayati Raj

Main problems with Panchayati Raj Institutions are – FUNDS , FUNCTIONS & FUNCTIONARIES

Powers have not been devolved adequately & Devolution index prepared by NCAER clearly points that
Grant in aid are major component of Panchayati Raj Institutions revenue
Most of the states are not constituting State Finance Commission . Even if they are constituted, their recommendations are not implemented . Panchayati Raj Institutions are always in Financial Crunch
Lack of training programmes for participants of Panchayati Raj Institutions to make them more professional & develop leadership qualities in them
Domination of bureaucracy over Panchayati Raj Institutions
Although third layer of Governance has been added by 73rd and 74th Constitutional Amendment but parallel restructuring of bureaucracy hasn’t been done leading to shortage of manpower .
Various parallel bodies like DRDA have undermined the importance of Panchayati Raj Institutions . These types of bodies should either be disbanded or made accountable to Panchayati Raj Institutions
Elite control over system is a fact till today
State level leaders still see Panchayati Raj Institutions leadership as challenge to their power & do all in their power to undermine their authority

Women and Panchayati Raj

Historically , women & lower castes were not allowed membership of Panchayat.
But 73^rdAmendment Act, 1992, reserved at least 1/3^rdseats at all levels of Panchayat for women.
Numerically, today India can actually boast that there are more elected women representatives (EWRs) in India that the rest of the world put together.
Elected women perceived enhancement in their self-esteem, confidence, decision-making ability and respect within the family after winning an election.

Pending legislative reform

110th & 112th Amendment Bill : Reserve 50 % seats for women in PRIs and Urban local bodies
Bihar, Uttarakhand, Madhya Pradesh, Punjab and Himachal Pradesh have already reserved 50% seats for women in local governance.

Pending constraints

Women belonging to disadvantaged sections face double oppression.
Acceptability of women as elected representatives . Male members try to create hurdles .
Issue of Sarpanch Patis, where the husband of the woman sarpanch manages the affairs of the Panchayat and she is only a proxy candidate.
Social myths and prejudices create hurdles . For example, tradition of remaining silent before elderly members

Panchayats (Extension to the Scheduled Areas) Act,1996 (PESA Act )

Need of PESA

Because 73rd Amendment is not applicable to Scheduled and Tribal Areas

Objectives of PESA

To extend provisions of Part IX to Schedule Areas
To make gram sabha nucleus of all activities
To safeguard & preserve traditions and customs of tribals
To prevent Panchayats at higher levels from assuming powers and authority of powers at lower levels

Features of PESA

Panchayats in these areas to be in consonance with local traditions
All villages to have Gram Sabha consisting of all whose name is in electoral rolls
Gram Sabha should approve plans for social and economic empowerment and identification of beneficiaries of poverty alleviation programmes
Gram Sabha or the Panchayats’ at ‘appropriate level’ should be consulted for acquisition for development and rehabilitation project
All Chairpersons in these areas should be STs
Gram Sabhas or Panchayats at appropriate level shall also have powers to
1. manage minor water bodies;
2. mandatory consultation in matters of land acquisition;
3. prospecting licenses/mining leases for minor minerals;
4. regulate and restrict the sale/consumption of liquor;
5. manage village markets,
6. control money lending to STs; and
7. ownership of minor forest produces
Note – In PESA, Gram Sabha is the lynchpin. Hence, PESA introduces a strong element of subsidiarity

Why poor implementation of PESA ?

PESA has been very poorly implemented across the nine States. Following reasons can be attributed to this

Absence of Proper definition of Village in consonance with PESA : All States, without exception, have continued with their earlier revenue definitions of the village.
Ambiguous definitions within PESA – definition of many provisions are ambiguous like minor water bodies, minerals in the statute etc
Lack of coordination and overlapping jurisdiction – Both Ministry of Tribal Affairs and Panchayati Raj have overlapping jurisdiction
State government laws and provisions cleverly negate PESA : For example, PESA is for rural areas, states upgrade rural panchayats to urban panchayats to bypass PESA (Xaxa Committee observation)
Attitudinal Problem of Bureaucracy: Government functionaries treat tribals as inferior.
There is a large number of Centrally Sponsored Schemes which are not compatible with PESA e.g. Policy on wastelands, water resources and extraction of minerals.

Ways to improve

Define Villages in consonance with the PESA Act
‘Prior informed consent to be taken’ to replace ‘consulted’ for acquisition for development and rehabilitation project
Representatives should be trained & educated to use their powers given to them under PESA effectively
Proper communication channel between Panchayati Raj and Tribal Affairs ministry
There is urgent need to amend Indian forest Act and other related Acts in consonance with PESA
No state government should have any power to overrule any recommendation of the Gram Sabha.

Way Forward – In the development offensive against the Maoists, PESA is a crucial weapon. Hence, it needs comprehensive reforms in provisions and implementation for holistic upliftment of tribal areas.

Amendment of Constitution

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Amendment of Constitution

Article 368 of Part XX of Indian Constitution deals with amendment of constitution.

Comments on Indian Constitution

Neither too rigid like constitution of USA nor too flexible like Britain
But synthesis of both
Present situation- Parliament cant amend those provisions which form basic structure of constitution (Supreme Court judgement in Keshavananda Bharti case,1973)

Method of Amendment By Article 368

Can be initiated in any House of Parliament but not State Assembly
Can be introduced by Minister or Private Member & doesn’t require permission of President
Bill must be passed by Special majority in both the houses.
If there is disagreement between two houses there is no provision of joint sitting
If Amendment seek to change Federal Structure then must be ratified by half of states by Simple Majority
After that bill sent to President for his assent and President must give his assent. He can neither hold nor send bill for reconsideration (added by 42nd Amendment)

1 . Amendment by Simple Majority

Number of provisions (which are not very significant are) outside scope of Article 368 & can be Amended by Simple Majority
And these are
1. Admission or establishment of new states
2. Formation of new states or changing boundaries of existing states
3. Creation or Abolition of Legislative Councils in States
4. Quorum in Parliament
5. Salaries & allowances of MPs
6. Use of English language in Parliament
7. Delimitation of Constituencies
8. Use of official language
9. Fifth & Sixth schedule
10. Elections to Parliament & State Legislatures

2. Amendment by Special Majority

Majority of Amendments of Constitution can be done by Special Majority
This way Amendments can be done in
1. Fundamental Rights
2. Directive Principles of State Policy
3. All other provisions not included in 1st and 3rd Category

3. Special Majority and Consent Of States

Those provisions which seeks to alter Federal Structure of Union done like this
Include
1. Election of President
2. Extent of Executive powers of Union & State
3. Supreme Court & High Court
4. Distribution of Legislative Powers of Union & States
5. Any of the list of 7th schedule
6. Representation of states in Parliament
7. Article 368 itself

Why so many amendments to the constitution ?

Constitution is the Supreme law of the land . A law can remain supreme and effective only if it can fulfil the interest of the different sections of the society and keep it orderly. Interest of the people evolve with time and in order to remain relevant , constitution has to be dynamic and a living document , thereby , amending it periodically becomes inevitable
This does not mean that Indian Constitution is too flexible to be easily amended . It is very finely balanced and combines the elements of Rigidity (like US) and Flexibility (like UK) .
- It gives leverage to Parliament for making cosmetic amendments by Simple Majority and keeps a tight check for critical changes by 2/3 majority
- Most importantly , it maintains a Federal Balance with acceptance of amendments by half the states that relate to Centre State relations
- Overall, Amendments have helped by creating new articles to meet the changing needs and modifying others to remain relevant .

Jawahar Lal Nehru in Constituent Assembly – ” While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless, there is no permanence in Constitution. If you make anything rigid and permanent , you stop a nation’s growth .”

Basic Structure of Constitution

Judicial history that led to Doctrine of Basic Structure

IT BASICALLY IS FIGHT BETWEEN EXECUTIVE & JUDICIARY IN WHICH EXECUTIVE AIMS TO INCREASE ITS POWER AND JUDICIARY TRIES TO SAFEGUARD ITS POWERS

1 . Shankari Prasad vs Union of India(1951)

Article 368 not only provide method to amend constitution but is also source of power for Parliament to amend constitution (ie Constitutional Amendment is not Law under Article 13 and hence beyond Judicial Review)

2. Golaknath Vs State of Punjab (1967)

Supreme Court ruled that power to amend constitution of India is not vested to Parliament under Article 368 but under Article 248
Hence situation was

Article 368	Describes method to Amend Constitution
Article 248	Which states that on Residuary Subjects ,Parliament will legislate and power to amend constitution also derived from it

Implication: All laws made using 248 are subjected to Judicial Review under Article 13 .

Supreme Court held that there are implied limitations on Amending Powers of Legislature and Fundamental Rights can be abrogated by Constituent Assembly only.

3. 24th Amendment,1971

To nullify Golaknath judgement
Amended Constitution such that
- Article 368 gives power to Parliament to amend constitution and hence it is out of Judicial Review under Article 13
- It is compulsory for the President to give assent to the Constitutional Amendment bill

4. Keshavananda Bharti Vs State of Kerala, 1973

Said three things
- 24th Amendment is Constitutional
- It over ruled Golaknath Judgement and said Article 368 gives power to Parliament to amend Constitution
- But put other restriction on Parliament that Amending Power of Constitution can’t alter BASIC STRUCTURE of Constitution
And what is Basic Structure would be decided by Supreme Court from time to time

5. 42nd Amendment, 1976

Amending power of Parliament is Supreme and it can’t be stopped even on the basis of DOCTRINE OF BASIC STRUCTURE

6. MINERVA Mills Vs Union of India, 1980

Supreme Court declared above provision of 42nd Amendment to be Unconstitutional
Judicial review cant be taken away from Supreme Court as it is Basic Structure of constitution.

7. Waman Rao Case,1981

Supreme Court adhered to doctrine of basic structure
Clarified that it would apply to constitutional amendments enacted after April 24, 1973

What is Basic Structure of Constitution ?

It was propounded in Keshavananda Bharti Case . Supreme Court is yet to define or clarify basic structure. But from various Judgements following things emerged as Basic structure

Supremacy of Constitution	Separation of powers among three organs
Sovereign, Secular & Republican nature	Federal Character of Constitution
Unity & Integrity of nation	Welfare state
Judicial Review	Freedom & Dignity of Individual
Parliamentary System	Rule of Law
Balance between Fundamental Rights & DPSP	Free & Fair elections
Principle of Equality	Independence of Judiciary
*Limited power of Parliament to amend constitution*	Effective access to Justice
Secularism (SR Bommai Case)	Power of Supreme Court under Article 32,136,141,142

Keshavananda Judgement – Since the Constitution had conferred a limited amending power on the Parliament , the Parliament can not under the exercise of that limited power enlarge that very power into an absolute power . The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.

Reaffirmment of Basic Structure came in Indira Nehru Gandhi vs Raj Narain (1975) which declared 39th Constitutional Amendment to be unconstitutional (39th Amendement removed the power of Supreme Court and other courts to adjudicate on elections of President, VP , PM etc) . Court held that Free and Fair Elections and Rule of Law are Basic Features of constitution

Present Debate : Where to draw line ?

There is debate that what constitute Basic Structure of Constitution . Judiciary is increasing the scope of Basic Structure and experts fear that one day, whole of Constitution can be included in Basic Part of Constitution.
The Constitution of any country is considered to be sacrosanct and foundational law. All articles and provisions of the constitutions are important . The question then arises can it be then interpreted to mean that some provisions are more important or basic and others are secondary. Perhaps it is time , Parliament should sit down and try to debate on what constitutes Basic Structure and insert Basic Features of Constitution by creating Schedule in Constitution itself as done by Germany.

Emergency Provisions

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Emergency Provisions

This article deals with ‘Emergency Provisions .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

Article 352 to 360 of Part XVIII of Indian Constitution deals with Emergency Provisions.
Indian Constitution provides three types of emergencies

Emergency due to War, External Aggression or Armed Rebellion	Article 352	National Emergency
Emergency due to failure of Constitutional Machinery in State	Article 356	Presidents Rule
Financial Emergency due to threat to financial stability of India	Article 360	Financial Emergency

Rationality of Emergency Provisions

To enable the Central Government to meet any abnormal situation effectively
Converts federal structure into unitary without any amendment
Constituent Assembly Debates : Dr Ambedkar claimed that the Indian federation, unlike any other federation, in times of emergency, could convert itself into an entirely unitary State

1 . National Emergency

Grounds on which National Emergency can be declared

President can declare it when security of India or part of India is threatened by war or external aggression or armed rebellion.
Can be declared before that happen when danger is imminent

Types of National Emergency

External Emergency	War or External Aggression
Internal Emergency	Armed Rebellion (earlier it was Internal Disturbance – 44th Amendment changed it)

Duration & Approval

Must be approved by Parliament within 1 month (44th Amendment Act )( earlier 2 months)
Need to be approved again after subsequent 6 months(earlier once started remains indefinitely till Executive desired)
It needs to be passed by Special Majority by both the Houses of Parliament (earlier Simple Majority)

Revocation of National Emergency

Can be revoked if Lok Sabha passes the resolution with Simple Majority (only Lok Sabha , Rajya Sabha not required) – added by 44th Amendment
Hence process to declare emergency is difficult than to revoke it

2 . President’s Rule

Grounds on which President’s Rule can be declared

Article 356	If President is satisfied that situation has arisen in State that government cant be carried on in accordance with the provisions of Constitution
Article 365	When State fails to comply with or to give effect to any direction from Centre, it is lawful for President to say that government is not carried in accordance with Constitution

Approval & duration

Approval	Must be approved *within 2 months* *by both Houses* with *Simple Majority*
Duration	If approved *continues for 6 months upto maximum period of 3 years* with *approval each 6 months by Parliament* 44th Amendment : can extend beyond 1 year on 2 grounds 1. National Emergency in place in whole country 2. Election Commission certify that situation not conducive to hold elections

Effects of President’s rule

President dismisses State Executive including Chief Minister
Governor on behalf of President carries State Administration
President either suspends or dissolves State Legislative Assembly
Laws made by President continue to be operative even after President rule is revoked

Use of Article 356

More than 100 times and many times for political and personal gains

Kerala & UP	9
Punjab	8

Arbitrary use of President’s rule

Issue : expression “ breakdown of constitutional machinery” has not been defined in the Constitution.
Although Ambedkar promised Article 356 will remain dead-letter. But history proved him wrong.
- In March 1953, the country’s first non-Congress government, headed by Gian Singh Rarewala in the PEPSU was dismissed and President’s Rule was imposed
- In 1957, Kerala saw the world’s first elected communist government coming into power. A series of progressive measures, opposed by the Catholic Church in Kerala, as well as American pressure engineered by the CIA, made the work of the government difficult. In 1959, then Congress President Indira Gandhi, convinced Prime Minister Jawaharlal Nehru that E.M.S. Namboodripad’s government deserved to be dismissed and President’s rule should be imposed.
1988 Sarkaria Commission report commented on the arbitrariness with which Article 356 was used: only 26 out of 75 cases until then were “just”
1980s : Farooq Abdullah’s government was replaced by his brother in law GM Shah using Article 356. This played major role in alienating people of Kashmir from democratic process .
In just about 2 years, Morarji Desai and Charan Singh governments dismissed 12 governments. Until the mid-1990s, President’s Rule was imposed in a state roughly every 6 months
Central Government use the office of Governor for this. Governor acts as agent of the Union and many a times try to destabilise the State Governments. Before Bommai Judgement , Governors went to such an extend that he tested the Majority in his official residence.
Buta Singh Bihar Assembly dissolution case : court observed that Governor’s report could not be taken at face value and must be verified by the council of ministers before being used as the basis for imposing President’s rule.

Judicial Review of President’s Rule + SR Bommai Case Guidelines

Judicial Review is present in case of Article 356

38th Amendment	Presidents decision is final and conclusive& cant be challenged
*44th Amendment*	*President’s decision is not beyond Judicial Review*

In S.R. Bommai case 1994, Supreme Court gave guidelines

April 1989, Karnataka CM S R Bommai requested Governor P Ventakasubbiah for an opportunity to prove his majority in the Assembly as the leader of the Janata Dal Legislature Party. It was denied, and Bommai’s government was dismissed and President Rule was imposed. Ultimately, the matter reached the Supreme Court. Supreme Court ordered that

Majority to be tested on floor of the house only & not anywhere else & was confirmed in Rameshwar Prasad v. Union of India (2005)
President Rule is under Judicial Review
Burden lies on centre to prove the correctness of President rule
State Legislature should be dissolved only after Parliament approval (is kept in suspended animation till that time)
Secularism is basic feature of Constitution & government pursuing anti secularism is liable to action
Article 356 could only be resorted to when there was a breakdown of constitutional machinery, as distinguished from an ordinary breakdown of law and order.
Article 356 is an exceptional power to be used in special situation

Supreme Court was of the view that such acts are bad for the democracy because if democratically elected governments are removed like this, people will loose their faith from democracy (reiterated in Uttarakhand and Arunachal Pradesh Case of 2016)

Article 356 was invoked on 40 occasions in the 15 years before Bommai judgement , and only on 11 in the 15 years after 1994. A combination of factors, including the

emergence of coalition governments at centre with representation from regional parties,
assertive President’s office
Assertive judiciary

checked the trend.

Even after Bommai Judgement, trend is emerging that Governor destabilise the government and impose President’s Rule. Since 2 months are given to pass it from Parliament, in the meantime new leader manipulates situation by indulging to horse trading and forming government. Hence, provision of 2 months is used by Governor to abuse his power and virtually this process is outside the oversight of Parliament.

Role of President in Checking this

President shouldn’t act blindly as in 1997, President K.R. Narayanan, in a first for any Indian president, returned to the cabinet its recommendation to impose direct central rule in Uttar Pradesh. Later, he returned a similar recommendation by another central government to dismiss the state government in Bihar.
Hence, apart from Judiciary, President can act as check and balance

Constitution Assembly Debates on Emergency provisions

We included it in the Constitution when B.R. Ambedkar gave an assurance that it would remain a dead letter.
Shibban Lal Saksena said, “we are reducing the autonomy of the states to a farce”.

Various Commissions on Article 356

1 . Sarkaria Commission (1987)

Article 356 should be used very sparingly, in extreme cases and only as a matter of last resort.
No dissolution of Assembly till proclamation is ratified by the parliament

2 . National Commission for Reviewing the Working of Constitution (2002)

A warning should be issued to the errant State, in specific terms that it is not carrying on the government of the State in accordance with the Constitution. Before taking action under Article 356, any explanation received from the State should be taken into account.
Safeguards corresponding to that of Article 352 should be incorporated in Article 356 to enable Parliament to review continuance in force of a proclamation.

3. Punchhi Commission (2008)

Imposition of localized emergency i.e. in only a district or a part of it.
It also recommended suitable amendments in Article 356 to incorporate the guidelines of Supreme Court in S.R Bommai case (1994) with regards to invoking of the article.

Use of National Emergency so Far

Has been used three times

1962	– Due to Chinese Aggression – Was in use till 1968 – Hence, no fresh proclamation for Pakistan War of 1965
1971	– Due to war with Pakistan – This emergency was in operation when Third Emergency was provoked. Both ended in December , 1977
1975	– Due to Internal Disturbance ( most controversial so far) – Ended in 1977,December

3. Financial Emergency

Grounds on which Financial Emergency can be declared

Article 360 : President can proclaim financial emergency if satisfied that situation has arisen in which Financial Stability of country or part of it is threatened

Approval & duration

Approval	Must be approved by both houses within 2 Months by Simple Majority
Duration	Once approved will remain in effect indefinitely till revoked by President

Effects of Financial Emergency

Executive at center can direct any state to observe such canons of financial propriety as specified by it
Ask states to reduce salaries and allowances of all or any class of persons, reserve all money and financial bills for approval by President
President may issue direction for reduction in salaries and allowances of all or any class of persons serving under union and judges of Supreme Court and High Court

Use of Article 360

Never used : in 1991 there was financial crisis but not financial emergency

All India Judicial Services

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All India Judicial Services

This topic remains in news frequently. For example, check the following news headlines

2018 : NITI Aayog in its Report ‘Strategy for New India @75’ mooted the idea of All India Judicial Services (AIJS)
2017 : Prime Minister has asked to review the possibility of recruiting judges through an All India Judicial Service (AIJS).

Historical background

Original constitution didn’t provide for the creation of an All India Judicial Services => first suggested in Chief Justices’ Conference in 1961.
After Swaran Singh Committee’s recommendations in 1976, 42nd Amendment provided for an All India Judicial Services.
Law Commission of India (LCI) in its 14th Report recommended the creation of All India Judicial Services.
Under this
- District Judges will be recruited centrally through an All India Examination
- They will then be allocated to each State on the lines of All India Services

Present system

Lower court judges are recruited by competitive exams conducted by State Public Service Commissions which are inefficient & lack objectivity by themselves & are marred by corruption , nepotism & influence peddling .

Arguments in favour of All India Judicial Services

Shortage of Judges : Existing system has led to shortage of judges. There are always 20 % vacancies in the courts.
In present system , Talent not attracted leading to low quality Subordinate Judiciary
It will provide lot of highly professional judges to be selected for High Court and Supreme Court .
Law Commission & Supreme Court Rulings & Committees recommended this
- Law Commission of India (LCI) .
- Chief Justices Conference
- Supreme Court Case => All India Judges Association vs Union of India recommended that an All India Judicial Services should be set up
- Swaran Singh Committee Report
- NITI Aayog in its Report ‘Strategy for New India @75’
Good example of other All India Services working well (eg : IAS, IPS etc)
Creation of highly professional Judiciary of All India Character
France has this type of Judicial System and it works with great efficiency

Arguments against All India Judicial Services

Some states and High Courts have opposed its creation on the following grounds

Lack of knowledge of regional languages would affect judicial efficiency
This would lead to an erosion of the control of the high courts over the subordinate judiciary
Against Federalism and will lead to excessive Centralisation
In SC, ST & OBC quota too, regional lowly represented groups in particular states will get marginalised . It is possible that even in North Eastern States, all the ST candidates from other state can get selected
Avenues for promotion would be curtailed for those who had already entered through the state services;

Without a push from the judiciary, the All India Judicial Services will never come to fruition. The Prime Minister and the Supreme Court are in favour of All India Judicial Services. There is no time better than now to start doing something about these problems.

Other alternative

Why not set up high quality institutions in every state to train fresh recruits before they start hearing cases

Judicial Backlogs

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Judicial Backlogs

“Justice delayed is justice denied“- goes the famous adage.

Statistics & Magnitude:

Number of Backlogs
- 3.20 crore cases are pending before various courts.
- 60,000 cases in Supreme Court
Number of Judges in India are low
- Present – 17 judges per 1 million population
- Required – Atleast 50 judges per 10 lakh (according to recommendations of Law Commission)
- In contrast, US has 151 and China has 170 judges for a million population.

Causes of huge backlog of cases

Number of the judges is very low , given the size of our democracy. There were only 17 judges to a 10 Lakh population when there should be at least 50 judges per 10 lakh.
Even sanctioned posts are vacant.
- All India vacancy = 26 %
- Bihar = 45% sanctioned posts vacant (highest)
Low budgetary allocation leading to poor infrastructure- India spends only about 0.09% of its GDP
Tendency to take appeals till Supreme Court
Increase in PILs & Special Leave Petitions
Malpractices by lawyers
Government & its departments act as Compulsive litigant => in 46% cases, government is Litigant
Redundant Case Management System (CMS): There is large amount of paperwork , rigid rules , archaic practices
Complexity in Indian law with overlapping provisions in different Acts. In September 2014, government setup Ramanujam Committee to identify central government statutes ready for repeal. It identified 1,741 such old statutes
Police lacks training for scientific collection of evidences
Lack of infrastructure : such as inadequate support staff for judges and dearth of basic courtroom facilities.

Impact of backlog of cases

Fundamental Rights like Equal Protection of Law and Right to life (of under-trials) impinged
Erosion of the rule of law
A market-based capitalist system can operate efficiently only if judicial processes ensure a fair enforcement of contracts.
Huge NPAs as commercial litigations not solved
Low foreign investment as investors are doubtful about timely justice

Remedies

245th Law Commission Report on “Arrears and Backlogs: Creating Additional Judicial manpower” has recommended various measures increasing judges , Alternate Dispute Resolution methods etc
Constituting an All India Judicial Service to provide more number of highly competent judges
Using Alternate Dispute Redressal Mechanisms like Lok Adalats, Tribunals for dispute settlement.
Improving the Courts Case Management System . Initiatives like the Crown Court Management Services of the UK may be considered.
Simplification and repealing of outdated laws.
Judicial Impact Assessment should be introduced while introducing a legislation.
Government is the biggest litigant in India. It should take steps at – setting up institutional measures for arbitration and dispute resolution.

Setting up more courts in areas having more case-load as ordered by Supreme Court in Imtiayaz Ahmad vs State of Uttar Pradesh (2012).
Institution of evening and morning courts to deal with petty matter like traffic violations/challans
Promoting research and studies on judicial reforms.

Public Interest Litigation

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Public Interest Litigation

How it all Started

Concept of Public Interest Litigation (PIL) originated and developed in USA in 1960s to provide legal representation to previously unrepresented groups and interests.
First case of PIL can be said to be of Hussainara Khatoon case on Undertrials but real beginning came from SP Gupta Case in which Supreme Court increased the Locus Standii .
Under PIL , Courts accept following cases when approached by any Public Spirited Citizen or Social Organisation
1. Where rights of all citizens are getting violated
2. As representative of poor & disadvantaged persons who can’t approach Court of law
Justice PN Bhagwati and Justice VR Krishna Iyer were the pioneers of PIL in India

June 2019 update : Top 5 judges can hear PIL matters. Earlier only Chief Justice of India & 2nd topmost Judge could hear PIL.

Flexibility in Standing , Form and Evidence

To encourage PILs, Supreme Court provided following flexibilities

Increased Locus Standi
Development of Epistolary Jurisdiction – Cases can be filed through letters and telegrams too.
Aid in Evidence – Supreme Court reduced norms governing evidence and appoints Amicus Curie

Recent Issues

Recently, Supreme Court voiced its concerns on the NGO becoming a “proxy litigant” and a front for settling corporate rivalry or personal vendetta.

Phases of PIL

Positive contributions of PIL

Vehicle to bring social revolution through constitutional means.
It has also helped in expanding the jurisprudence of fundamental and human rights in India. eg : Hussainara Khatun Case protecting fundamental rights of under-trials.
PIL also become an instrument to promote rule of law, demand fairness and transparency, fight corruption in administration
- Corruption: 2G scam was unearthed by PIL filed by two individuals.
Through PIL, judiciary filled legislative gaps in important areas. For example –Vishaka guidelines on sexual harassment at workplace.
PIL has helped the Indian judiciary to gain public confidence and establish legitimacy in the society.

Challenges

Main challenge is where to draw line from Judicial Activism to Judicial Adventurism. The PIL project has been amplified much beyond its original conception , giving rise to legitimate criticism that its true purpose has been lost sight of.

An unanticipated increase in the workload of the superior courts. There is huge backlog of cases already and PILs further increases that workload.
Deviated from original rationale for allowing PILs: PILs have become instruments of contestation of already powerful and well represented groups eg
- Dr. Dina Nath Batra of the Shiksha Bachao Andolan Samiti, a front organisation for the RSS, has filed PILs to remove “objectionable material” in NCERT textbooks
Settling Corporate rivalry : Sometimes Companies which lose any corporate battle use NGOs as bate to file frivolous PILs as happened in Reliance Jio Case of 2016.
Violation of separation of power: Courts make Laws which is function of Legislature and is against Separation of Power .
Ineffective implementation: Due to plethora of PILs, it becomes difficult for court to ensure effective implementation of its orders, which leads to credibility erosion.
Instrument to gain publicity by lawyers : Some lawyers see PILs to increase their publicity and file PILs not with intention to help poors but to gain cheap publicity and buy some time on national news-channels.

Way to correct

Supreme Court guidelines (Balwant Singh Chaufal vs State of Uttarakhand) : To qualify as a PIL, certain conditions must be satisfied . e.g., letter addressed by aggrieved person, a public spirited individual etc.
Heavy Fine against Frivolous PILs : Fine heavily those NGOs & persons who waste time of Court in guise or Public Interest. Eg : in May 2017 : Supreme Court imposed ₹25 lakh on Suraz India Trust, for filing frivolous PILs
Social Justice Bench- Special Bench christened as Social Justice Bench has been created which will hear all the cases relating to Social Justice each Friday .

Judicial Activism

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Judicial Activism

According to Doctrine of Separation of Power , the Judiciary cannot formulate policies or make laws. It’s function is just to ensure that the laws and executive actions do not violate the Constitution
Judicial Activism implies going beyond the normal constraints applied to jurists & jurists start to make any legislation or policies

Reasons of Judicial Activism

Near collapse of responsible government when the Legislature and Executive fail to discharge their functions => judiciary has to become savior of last resort.
Judicial Enthusiasm : judges like to participate in the social reforms
Legislative Vacuum – There may be certain areas which have not been legislated upon.
Constitution of India has itself adopted certain provisions which gives judiciary enough scope to legislate or play active role.

Arguments against Judicial Activism

Accountability : Judges evolve policies but they are not accountable to people
Ideological : Goes against the Doctrine of Separation of Power.
Epistemic : Judges don’t have enough knowledge on specialized matters.
Management : By increasing Locus Standi , they are increasing Litigation work load
It can hurt the Federal Structure, when Judges do not adhere to Constitutional Principles while adjudicating complex issues.

Supreme Court itself observed in the Aravali Gold Club Case, if the two organs of the State fail to perform their functions properly, it is for the people to provide a corrective. The remedy is not in the judiciary taking over the legislative or executive functions.

History of Judicial Activism

1950s & 60s	– Courts were conservative except for few cases on Right to Property – On personal liberty, court was highly conservative . Eg in AK Gopalan case (1950) , Supreme Court ruled that personal liberties can be taken away by enacting law .
1970s	– Maneka Gandhi case => if we read Article 21 in conjugation with Article 14 & 19, it is as good as Due Process of Law – Coming to due process clause through the judicial interpretation is creating the problem of Judicial Activism

Judgments of the Supreme Court showing Judicial Activism

1 . Right to life (Maneka Gandhi case) ,1978

Right to Life under Article 21 is not merely right to physical existence, but to a life of some quality and dignity.

2. Hussainara Khatoon vs State of Bihar (1979)

Article 21 includes Right to Speedy Trial
Under-trials must be freed by following certain process

3. SP Gupta Case (1982)

Supreme Court expanded the Locus Standii
Note – In Anglo-Saxon Legal system, only aggrieved person can come to court of law but third person can’t approach (with certain exceptions)
In this case, Supreme Court expanded the Locus Standii. Supreme Court declared that any citizen has standing if
1. He approach court in case where rights of all citizens are getting violated
2. Can become representative of poor & disadvantaged persons who can’t approach Court of law (this is known as Public Interest Litigation Jurisprudence)

4. In case of CBI’s autonomy / Vineet Narayan Case

It asked the Government, to inform it about the steps it was going to take to enact a law for ensuring CBI’s autonomy.

5. In Vishaka (1997) case

Supreme Court was dealing with a Writ Petition for enforcement of fundamental rights of working women under Articles 14, 19(1)(g) (the right to practice any profession etc) and Article 21. There was no national legislation, so Supreme Court laid down norms & guidelines, giving them binding force.

6. In Prakash Singh (2007)

Court felt compelled to give seven directions with regard to Police Reforms

Judicial Overreach

Above are the cases , where Judicial Activism can be justified. But in garb of Judicial Activism , sometimes Higher Courts have gone too far resulting in Judicial Overreach .
Judicial Overreach refers to an extreme form of judicial activism where Judiciary forays into domain of legislature & executive with intention of disrupting the balance of powers between executive, legislature and judiciary in its favour.
Examples of Judicial Overreach
1. Supreme Court judgement regarding ban of Alcohol Sale within 500 m radius from National & State Highways.
2. Madras High Court imposing a dress code in temples in Tamil Nadu
3. Banning on traditional practices like Jalikattu,
4. Total ban on diesel taxis in Delhi at the cost of affecting the livelihood of certain section of the population.
5. Chandigarh High Court ordered, What Rate of tolls should be charged at a toll plaza in Gurgaon.
6. Iron ore mining has been banned in Karnataka and Goa.

Judicial Restraint

Judicial Activism and Judicial Restraint are two alternative judicial philosophies in United States.
Those who subscribe to Judicial Restraint argue that the role of Judges should be scrupulously limited. Their job is merely to say what the law is .

Examples of self restraint & not curtailing other’s power

Madhu Holmagi v. Union of India : one Advocate filed a public interest litigation challenging the “Agreement 123” i.e. Indo-US nuclear treaty . Petitioner contended that court must have to scrutinize the all documents . Court dismissed the petition because question raised by the petitioner is a question of policy decision, which is to be decided by Executive

High Courts

by admin

High Courts

This article deals with ‘High Courts.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

Article 214 to 231 of Part VI
Below Supreme Court in single integrated judicial system of India & top judicial body in state
Originated in 1866 when High Court were established in Calcutta, Madras & Bombay
Original Constitution provided for High Court for each state . But after 7th Amendment 1956 – two or more states & UT can have common High Court.

Number of Judges

All High Courts to have Chief Justice & as many Judges as President may deem necessary
Constitution doesn’t specify their strength & leave it to discretion of President

Appointment of Judges

Chief Justice of High Court is appointed by President in consultation with Chief Justice of India & Governor(s) of State(s) concerned
Other Judges – Appointed by President in consultation with Chief Justice of India . Chief Justice of concerned high court is also consulted.

2nd Judge Case	1993 – No appointment of Judge unless it is in conformity with opinion of Chief Justice of India
3rd Judge case	1998 – Chief Justice of India should consult with collegium of two senior most judges of Supreme Court & sole opinion of Chief Justice not constitute consultation

Qualification to become Judge of High Court

He should be citizen of India
Have held either
- Judicial office for 10 years or
- Advocate of High Court(s) for 10 years

Note

There is no minimum age criteria.
No provision for appointment of distinguished jurist as High Court Judge. It is there in case of Supreme Court.

Tenure of High Court Judge

No fixed tenure but following 4 provisions regarding that

Holds office until he attains age of 62 years
Resign his office by writing to President
Can be impeached from office by Parliament
Vacates his office when he is appointed as Judge of Supreme Court or transferred

Removal of Judge

Can be impeached in same way as Judge of Supreme Court
No judge of High Court has been impeached till date

Transfer of Judges

President can transfer judge from one High Court to other High Court after consulting Chief Justice of India
On transfer he is entitled to compensatory allowance
Supreme Court’s Judgements

1997	Transfer could be resorted to only as in exceptional measure & only in public interest & not as way of punishment
1994	Judicial Review is necessary to check arbitrariness in transfer but only judge who is transferred can challenge it
1998	Chief Justice of India should be consulted in addition to 4 Seniormost judges of Supreme Court & 2 Chief Justice of High Courts concerned

Acting Chief Justice

President can appoint any judge of High Court as acting Chief Justice when

Office of Chief Justice of High Court is vacant
Chief Justice of High Court is temporarily absent
Chief Justice of High Court is unable to perform the duties of his office

Other Judges

Additional judge	President can appoint a person qualified to become judge of High Court when there is temporarily increase in business of High Court or there are arrears of work in High Court
Acting Judge	President can appoint a person qualified to become judge of High Court when any judge of High Court is unable to perform his duties or is acting as Chief Justice of High Court
Retired Judges	– At any time Chief Justice of High Court can request retired judge of any High Court to act as judge of High Court for temporary period – Previous consent of President & of retired judge necessary – He enjoy all powers & privileges of judge but not deemed to be judge

Provisions to ensure independence of High Courts

Mode of appointment of judges to maintain independence of judges
Security of tenure to Judges . Judge don’t hold office in pleasure of President although appointed by him
Fixed service conditions & cant be reduced to their disadvantage except financial emergency
All expenses charged on consolidated fund of state and pensions of judges on consolidated fund of India
Conduct of judges cant be discussed in houses of Parliament or state legislature except during impeachment
Ban on practice after retirement (can’t practice in High Court from where he has retired but can practice in any other High Court & also in Supreme Court)
Power to punish contempt of court to maintain dignity and honour of High Court
It’s jurisdiction can’t be curtailed
Separation from executive i.e. executive don’t have judicial powers

Jurisdiction of High Court

1 . Original Jurisdiction

Matters of admiralty, will, marriage, divorce, company laws & contempt of court
Disputes relating to election of members of Parliament & State Legislature (through Election Petition)
Regarding revenue matter or an act of revenue
Enforcement of Fundamental Rights of citizens
Cases ordered to be transferred from subordinate court involving interpretation of constitution .

2. Writ Jurisdiction

Article 226 – can issues writs same as Supreme Court for enforcement of Fundamental Rights
Not exclusive but in concurrent with writ jurisdiction of Supreme Court
Writ Jurisdiction is wider than Supreme Court because can issue writs for enforcement of Ordinary Rights too

3. Appellate Jurisdiction

3.1 Civil Matters

First appeals from subordinate courts on both question of law & fact
Second appeals from subordinate courts only on question of law(not fact)
Appeals from decisions of Administrative Tribunals (Supreme Court Judgement 1997- appeal from Tribunals has to pass through High Court before reaching Supreme Court)

3.2 Criminal Matters

Appeals from subordinate court involving imprisonment of 7 years
Cases involving capital punishment should be confirmed by HC before execution
Some specified cases under Criminal Procedure Code(1973)

4. Supervisory Jurisdiction

Have SUPERVISORY Jurisdiction on subordinate courts & tribunals functioning in its territorial jurisdiction (except military courts or tribunals )

5. Advisory jurisdiction

No advisory jurisdiction

Control over Subordinate Courts

Consulted by Governor in appointment, posting & promotion of district judges
It can withdraw case pending in subordinate court if it involves substantial question of law & can dispose itself or dispose question of law & send case back
Its law are binding on all subordinate courts functioning in its jurisdiction

Court of Record

Two powers under this

Judgements, proceedings & acts of High Court are recorded for perpetual memory & testimony & cant be questioned when produced before any subordinate court
Has power to punish for contempt of court with imprisonment of 6 months or fine upto ₹2,000 or both

Contempt of Court has not been defined in constitution & is defined by Contempt of Court Act,1971

Power of judicial review

Power of High Court to examine constitutionality of legislative enactments & executive orders of both state & center governments . If they are found to be violative of constitution(ultra-vires), they can be declared as illegal & unconstitutional
Phrase Judicial review is nowhere used in constitution but provisions of several articles confer this power

Number of High Courts in India

Total number of High Courts in India = 24
3 newly constituted = Tripura, Manipur & Meghalaya in Agartala, Imphal & Shillong in 2012
Punjab & Haryana common High Court in Chandigarh established in 1875 originally in Lahore then moved to India as Punjab High Court & renamed Punjab & Haryana High Court in 1966.
Andhra High Court is still Hyderabad. New will be made in Amravati but not yet functional)

Supreme Court

by admin

Supreme Court

This article deals with ‘Supreme Court.’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here

Introduction

Article 124 to 147 of Part V deals with Supreme Court
Unlike USA (& other Federations) , India has single system of courts for central and state laws with Supreme Court at top
Single system was adopted from Government of India Act,1935
Inaugurated on 28/1/1950 , succeeded Federal Court but was different in sense that it has higher jurisdiction and highest Court of Appeal ( earlier British Privy Council was highest court of appeal)
Supreme Court is final interpreter & guardian of Constitution and guarantor of Fundamental Rights.

Organisation of Supreme Court

At present, Number of Judges = 31(1+30) (Originally 8(1+7))
Number of judges can be changed by Parliament via Act => Supreme Court (number of judges) Act was passed for this

Judges of Supreme Court

Appointment of Judges

Dealt by Article 124(2) – Chief Justice & Judges to be appointed by President
- Chief Justice of India (CJI) to be appointed by President after consultation with judges of Supreme Court & High Court.
- Judges to be appointed by President after consultation with Chief Justice and Judges
Note : Term used is ‘Consultation’ and not ‘Concurrence’ .

Till emergency, provisions didn’t present any difficulty and worked smoothly .

Do Consultation means Concurrence + Issue of Transfer of Judges

In Constituent Assembly Debates when motion was moved to replace word Consultation with Concurrence, Dr Ambedkar replied , “We are not giving Veto Power either to the Executive or to the Judiciary. ”

Till emergency , provisions of Constitution presented hardly any difficulty. Problems arose during the Emergency

Case 1 : SP Gupta vs Union of India (First Judge Case), 1982 : Supreme Court ordered that word used is Consultation and not Concurrence. Hence, advise of Chief Justice India isn’t binding.

Case 2 : Advocates on Record Association vs Union of India (Second Judges Case) , 1994 : 9 Judge Bench overruled previous decision

Chief Justice India is bound to consult 2 Senior most Judges => Collegium System established

Case 3 : Re Presidential Reference (Third Judges Case) , 1998 : In 1994 Judgement, nothing was said about how consultation would take place between Chief Justice of India and 2 Senior Judges . There were allegations that other Judges of Supreme Court were not effectively consulted

Chief Justice of India is bound to consult 4 Seniormost Judges of Supreme Court .
Recommendation of Chief Justice of India & 4 other judges are to be conveyed in writing to President
For Appointment of Judges of High Court, consultation with 2 Seniormost Judges of Supreme Court
If any two or more Judges gave adverse opinion, no recommendation can be made
Although President can make objection but if same names are again recommended , then President has no discretion.

Appointment of Chief Justice of India

1950-73	Seniormost judge of Supreme Court appointed Chief Justice
1973	AN Ray was made Chief Justice superseding 3 senior judges
1977	MU Beg made Chief Justice superseding a senior judge
2nd judges case	Seniormost judge should be appointed as Chief Justice

Side Topic : Issues with Collegium System

Constitutionality:
- Constituent Assembly after adequate debates rejected the proposal to vest the Chief Justice with veto power over appointments.
- According to Law commission , Collegium is a clear violation of Article 74 of the Constitution which demand President to act on the aid and advice of the Council of Ministers.
Lacks Transparency: Collegium system is non-transparent and closed in nature as there exists no system of checks and balances
Uncle Judges Syndrome: Sons and nephews of previous judges or senior lawyers tend to be popular choices for judicial roles.
Disturbs balance of power between Executive and Judiciary and destroys the Checks and Balances
Collegium system was asserted when we had weak Central governments in the 1990s. Now such situation is not there .

Conclusion : Justice DY Chandrachud had famously said: ‘Above all, sunlight is the best disinfectant.’ The sunlight should also percolate through various layers of the judiciary so that the decisions taken on the administrative side are viewed with complete trust.

Qualification to become Judge of Supreme Court

Person should be Citizen of India
Person should be
- Judge of High Court for 5 years or
- Advocate of High Court or 10 years or
- Distinguished Jurist in President’s opinion
No minimum age requirements

Tenure of Supreme Court of India

Till they attain age of 65 years (62 years in case of HC judges)

Removal of Judges

According to constitution, Judge of Supreme Court can be removed by Parliament with special majority and assent of President on ground of ‘proved misbehaviour’ or ‘incapacity’

Judges Inquiry Act regulate the procedure

Removal motion signed by 100 members in case of Lok Sabha or 50 in RS is submitted to Speaker
Speaker may admit motion or refuse it
If admitted, then a committee is formed under Chief Justice /Judge of Supreme Court of India ,Chief Justice of High Court and distinguished jurist
If committee found judge to be guilty then procedure in Parliament starts
Motion to be passed in both houses by special majority and then assent of President is required

Till now no judge removed and only one case of proceeding of V Ramaswami in 1993 was initiated but failed to get passed by Special Majority.

Issue with the Removal Process

Words ‘Proved Misbehaviour’ or ‘Incapacity’ has not been defined anywhere in the Constitution
Difficult to Accomplish (2nd ARC) : Impeachment provisions have turned out to be impracticable . There are five stages, all of them difficult to accomplish. Inadequacy of the existing mechanism was affirmed in the K Veeraswami case, 1991(Punjab High Court Judge) and V Ramaswami even after adverse findings of the Judges’ Committee
It also involves political considerations. For example, the Congress abstained from voting on the resolution when the motion for removal of Justice V. Ramaswami was moved in 1993 . As a result, although 2/3rd present and voting , voted for impeachment but it fell short of 1/2 of total votes
The Judge under investigation is not prohibited from discharging his duties in court of law.
There is no process short of removal which can be undertaken to make them accountable

Way Forward

Judicial Standards and Accountability Bill (JSAB), 2012 could be revived.
Justice J. S. Verma advised a Model Code of Conduct for judges
NCRWC headed by Justice Venkatachaliah also spoke against frequent misbehaviours seen in conduct of Judges and need to have mechanism short of impeachment to control it.

April 2019 : group of Opposition MPs submitted a notice for then Chief Justice Dipak Mishra’s impeachment to the Rajya Sabha Chairman. However, Vice president of India/ Presiding Officer (PO) in Rajya Sabha has rejected the impeachment motion

Special judges

Ad hoc judge	When there is lack of quorum in Supreme Court , Chief Justice with assent of President can appoint judge of High Court as judge of Supreme Court temporarily. He enjoys all privileges of Supreme Court judge during this period
Retired judge	Can also appoint retired judge of Supreme Court or High Court to act as judge of Supreme Court temporarily . Privileges of judge of Supreme Court are given but not deemed to be Supreme Court judge

Seat of Supreme Court

Constitution declares Delhi to be seat of Supreme Court
Chief Justice can appoint other places as seat of Supreme Court in consultation with President . But this provision is only optional and not compulsory.

Procedure of court

Supreme Court can make its own procedures with approval from President
Constitutional cases & cases referred to Supreme Court by President under Article 143 decided by(minimum) 5 judge bench
All other cases to be decided by 3 Judge bench
Judgement delivered in open court by majority vote (although Judge not agreeing with the Majority view is entitled to deliver a dissenting judgement or opinion)

Note : Chief Justice of India is the MASTER OF ROASTER . Bench headed by CJI Deepak Misra gave this judgement in 2018.

Independence of Supreme Court

Balmukand Shah vs State of Bihar (2000) – Independence of Judiciary is part of basic structure of the Indian Constitution.

How it is ensured

Mode of appointment of judges to maintain independence of judges
Security of tenure to Judges
Fixed service conditions & can’t be reduced to their disadvantage except during financial emergency
All expenses charged on consolidated fund of India
Conduct of judges can’t be discussed in houses of Parliament except during impeachment
Ban on practice after retirement
Power to punish Contempt of Court to maintain dignity and honour of Supreme Court
It’s jurisdiction cant be curtailed

Jurisdiction of Supreme Court

1 . Original jurisdiction

As Federal Court , it decides disputes between Indian Federation & this is exclusive & original jurisdiction
1. Center & one or more states
2. Center & any state or states on one side
3. Between two or more sides

But this doesn’t extend to any dispute arising from

Preconstitution treaty & agreement
Interstate water disputes
Matter referred to Finance Commission
Ordinary dispute of commercial nature between Center & States

It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. Neither the High Courts nor the lower courts can deal with such cases.

2. Writ jurisdiction

Supreme Court is guarantor & defender of Fundamental Rights
And for that, it can issue writs ie Mandamus, Habeas Corpus, Prohibition, Quo Warrento & Certiorari under Article 32
Writ Jurisdiction is Original but not exclusive ie High Court can also issue writs
Writ Jurisdiction of High Court is greater than Supreme Court but Parliament is empowered to confer on Supreme Court power to issue writs for other purposes too
Supreme Court can depart from ordinary adversarial procedure to prevent procedural technicalities from upholding Fundamental Rights
Under Writ Jurisdiction, Supreme Court has flexibility of Locus Standi too . Supreme Court has used this to invent Public Interest Litigation.

3. Appellate jurisdiction

In following cases :-

Constitutional Matter	If High Court certifies that case involves substantial question of law that require interpretation of constitution
Civil Matter	If High Court certifies that – Case involves substantial question of law of general importance . – Question needs to be decided by Supreme Court .
Criminal Matter	If High Court has – Reversed the order of acquittal & sentenced him to death/life/10 years imprisonment – Taken before itself any case from subordinate court & accused person & sentenced to death/life/10 years imprisonment – Certified that case is fit for appeal to Supreme Court

4. Advisory jurisdiction

Article 143 – President can seek opinion of Supreme Court in two matters
- On any question of law or fact of public importance which has arisen or likely to be arisen
- On any dispute arising out of any preconstitution treaty, agreement etc

First time Supreme Court may or may not but second time, it is bound to give advice but advice is not binding on President => so far 15 times this is used (note name of cases for prelims)

Delhi Laws Act in 1951
Kerala Education Bill in 1958
Berubari Union in 1960
Sea Customs Act in 1963
Keshav Singh’s case relating to the privileges of the Legislature in 1964
Presidential Election in 1974
Special Courts Bill in 1978
Jammu and Kashmir Resettlement Act in 1982
Cauvery Water Disputes Tribunal in 1992
Rama Janma Bhumi case in 1993
Consultation process to be adopted by the chief justice of India in 1998
Legislative competence of the Centre and States on the subject of natural
gas and liquefied natural gas in 2001
The constitutional validity of the Election Commission’s decision on
deferring the Gujarat Assembly Elections in 2002
Punjab Termination of Agreements Act in 2004
2G spectrum case verdict and the mandatory auctioning of natural
resources across all sectors in 2012

Special Leave Petition

Article 136 provides appeal by Special Leave

Supreme Court can grant in its discretion Special Leave to Appeal from any judgement in any matter passed by any court or tribunal . There are 4 provisions regarding this
- It is Supreme Court’s discretionary power . It can’t be challenged as matter of right
- Can be granted in any judgement whether final or interlocutory
- Can be granted to any matter i.e. constitutional, civil, criminal, labour, revenue
- Can be granted against any court or tribunal & not necessarily High Court (except military court)
SC comment – it is extra ordinary power vested by Constitution in Supreme Court . Hence, should be exercised sparingly & with caution & in special extra ordinary condition

Ill effects of this Provision

Increased Pendency of Cases in Supreme Court : Supreme Court’s pendency has reached 65,000 in arrears due to accepting cases through Special Leave Petition route .
Appreciation and Reapprciation of evidences : It might be true that the quality of judgements of the lower courts leaves much to be desired. But there should be some finality somewhere
The number of appeals entering the court through this gateway has exceeded by far the writ petition route. Moreover, Public Interest Litigation benefit millions of people, who cannot approach the court directly.

Article 142

Article 142 : Supreme Court may pass any decree or make any order as is necessary for doing complete justice
Word ‘Complete Justice’ is not defined .

Evolution of Article 142

Early	Supreme Court used it to bring complete justice to various deprived sections of society or to protect environment in cases like 1. Taj Mahal Case : Ordered for cleansing of the Taj Mahal 2. Under-trials Case : Ordered to release under-trials who were rotting in jails
Inflection Point	Bhopal gas tragedy Case : Supreme Court felt a need to deviate from existing law to bring relief . Ordered that to do complete justice, it could even override the laws made by Parliament . Thus, Supreme Court of India placed itself above the laws made by Parliament
After	Using this article, Supreme Court has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’ 1. Coal block allocation case, 2014 : Allocation of Coal Blocks granted since 1993 were cancelled 2. Ban on the sale of alcohol along national and State highways, 2017

Cause of Concern

Using it for Unlimited power – This is extraordinary power to be used in extraordinary situations. But SC is using this frequently .
Affects rights of citizen – judgments like Coal Block Allocation , Alcohol Sale Ban on Highways etc affect rights of accused and render lakhs of people unemployed
Against Separation of Power – It is against the doctrine of ‘separation of powers’

Court of Record & Contempt of Court

Two powers are given under Court of Record

Judgements, proceedings & acts of Supreme Court are recorded for perpetual memory & testimony. They can’t be questioned when produced before any court
Has power to punish for contempt of court with imprisonment of 6 months or fine upto ₹2,000 or both .

Side Topic : Contempt of the court

Contempt of Courts Act, 1971 define and limit the powers of certain courts . Contempt of court means Civil Contempt or Criminal Contempt.

Civil Contempt	Civil contempt means wilful disobedience to any judgment or wilful breach of an undertaking given to a court.
Criminal Contempt	Criminal contempt means the publication of which – Lowers the authority of any court; – Interferes with the due course of any judicial proceeding; – Interferes with the administration of justice

Note : Section 19(2) establish reasonable restrictions on speech, on various grounds, including contempt of court.

Need of such Powers

Contempt provisions have been provided to ensure that the Judges do not come under any kind of pressure either from media criticisms or by general public opinion and discharge their duties without any kind of fear and favour

Criticism of Contempt of Court power

Article 19(1)(a) vs Contempt of Court Issue. People have right to know if there is any malfunctioning in Judiciary but Contempt provisions are used to muzzle free speech . Eg : Shillong Times editor found guilty of contempt of court for the publication of an article on the perks and facilities for retired judges and their families.
Contempt of court law is hangover from British rule & derived from an era when king used to decide the case himself.
Even England, in 2014, after a recommendation by its Law Commission, the country altogether abolished this act.
In India, judiciary has been given vast powers which are considered domain of legislature & executive. When judges have such a vast powers , it is difficult to expect people to be silent on these matters.
Pandit Thakur Das Bhargava in the Constituent Assembly spoke against Contempt of Court provisions arguing that it will be used by Courts to muzzle free speech which is the case now.
Conflict of Interest : Judges sit in making judgement in which they themselves are involved which is clear case of Conflict of Interest .

Contempt powers should be used in rare cases & in such a way that they don’t violate Right to Freedom of Speech while also ensuring independence of the Judges. Healthy criticism within limits is good for democracy and prevents stagnation in any democratic institutions.