Gist of Yojana April 2020 Issue: The Constitution of India

1. Introduction
2. Safeguarding Human Rights
3. Balancing Fundamental Rights and Duties
4. Fundamental Duties: Objectives and Challenges
5. Drafting of the Constitution of India
6. Mending Court Judgments: The First Constitutional Amendment
7. The Indian Parliament: Performance and Challenges
8. Panchayati Raj System
9. Checks and Balances
10. Foreign Relations and Indian Constitution
11. Gender Rights: Reflection, Commitment and Action
12. TID-BITS:
1) Citizenship Amendment Act 2019
2) Schemes and Policies for Minorities
3) Rashtriya Kishor Swasthya Karyakram

A Constitution is a document of people faith and aspirations possessing a special legal sanctity. It is the fundamental law of a country and all other laws and customs of the country in order to be legally valid shall conform to the constitution. It is the supreme law of the land. It sets out the framework and the principal functions of various organs of the government. In short, the Constitution is the rule book of the nation.

• The Constitution of India is a result of exhaustive research and deliberations of a body of experts.
• These makers of our Constitution, with their foresight and wisdom, prepared a futuristic and vibrant document that reflects our ideals and aspirations on the one hand, and protects the future of all Indians on the other.
• They are credited to bring in the best features of all the hitherto existing related documents and making it the most lengthy and detailed constitutional document in the world.
• The document in itself is well-equipped for future amendment provisions. It was made sure that the Constitution should neither be too rigid nor too flexible.
• The hundred-plus amendments over the seven decades have strengthened it further and made the constitution even more relevant in the present times.
• It is the longest written Constitution in world containing 395 Articles, 22 Parts, and 12 Schedules.

Preamble:

The Preamble to the Constitution declares India to be a sovereign, socialist, secular democratic republic and a welfare state committed to secure justice, liberty and equality for the people and for promoting fraternity, dignity of the individual and unity and integrity of the nation.

• These Rights go hand-in-hand with the Fundamental Duties.
• It is the duty of every citizen to abide by the Constitution and respect its ideals and institutions; to cherish and follow the noble ideals of our freedom struggle; to renounce practices derogatory to the dignity of women; and to value and preserve the rich heritage of our culture.
• The Rule of Law has been a core civilisational value of Indian society since ages.
• About 1500 archaic laws have been repealed. And speed has been demonstrated not only in doing away with irrelevant laws but also in enacting new legislations aimed at strengthening the social fabric.
• The architect of our Constitution, Dr. B. R. Ambedkar had said: “Constitution is not a mere lawyer’s document, it is a vehicle of life, and its spirit is always a spirit of age.”
• In legislating the rights for transgender, the law against the practice of Triple Talaq, expanding the rights of Persons with Disabilities, the government has worked with complete sensitivity and responsiveness to the needs of modern society.

Constitution Day:

• It was in 2015, the 125th birth anniversary year of Baba Saheb Dr. Bhimrao Ambedkar that the Government of India decided to celebrate 26th November, as ‘Constitution Day’ every year.
• The year 2019 marked the 70th year of the adoption of the Constitution.
• To reiterate gratitude to the chief architect of our Constitution, and publicise the glorious and rich composite culture and diversity of India, the Government is celebrating the spirit of Constitution through a series of initiatives and activities till 26th November 2020.
• Also, 14th April, 2020 is the 130th Birth Anniversary of Dr. Ambedkar.

“Human rights are not a privilege conferred by the government. They are every human being’s entitlement by virtue of his humanity.” – Mother Teresa.

Human Rights:

• Human rights are the rights which are possessed by every human being, simply by virtue of being a human.
• Human rights and fundamental freedom allow us to fully develop and use our human qualities, our intelligence, our talents, and our conscience and to satisfy our physical, spiritual and other needs.

Universal Declaration of Human Rights:

By the Universal Declaration of Human Rights, the nations of the world were specifically exhorted to act as the guardians of human rights. By 1966, the United Nations General Assembly adopted two important covenants which are at the same time both general and universal, one dealing with civil and political rights and the other with economic, social and cultural rights. Both the covenants principally deal with rights which were to be enjoyed by individuals.

1. The International Covenant on Civil and Political Rights, 1966
2. The International Covenant on Economic, Social and Cultural Rights, 1966

Many countries have passed legislations to bring their laws as far as possible in conformity with the spirit and letter of the Universal Declaration of Human Rights and other International instruments.

India and Human Rights:

• India is a sovereign, socialist, democratic Republic.
• Long before these international covenants came into force, the Indian Constitution has guaranteed several rights for its citizens which are known as fundamental rights as enshrined in Part III of the Constitution.
• Right to Life, Liberty, Equality, Dignity, Freedom of speech and expression besides religious freedom and right against exploitation and rights of minorities towards culture and to establish education institutions are some of the enforceable rights which cannot be infringed upon by the State through executive action.
• The Constitution safeguards all citizens, individually and collectively, human rights by protecting basic freedoms.
• These are guaranteed in the Constitution in the form of six broad categories of Fundamental Rights, which are justiciable.
• Article 12 to 35 contained in Part III of the Constitution deals with Fundamental Rights.
  • The Fundamental Rights have been accorded prime importance in the Constitution of India.

There have been judicial pronouncements which have upheld the superiority of Fundamental Rights as provided in the Constitution of India.

• The Supreme Court of India in the Kesavananda Bharti case, Minerva Mills and I.R. Coelho case have upheld that though fundamental rights, as such, are not immune from amendment en block, particular rights or part thereof may be held as basic features which cannot be amended by exercising the power of amendment under Article 368 of the Constitution of India.
• The Supreme Court in its various decisions has stated that Right to Life, enshrined in Article 21 means something more than mere survival or animal existence.
• State is prohibited from making a law which either takes away or abrogates the part of fundamental rights totally.
• Prior to the decision in Maneka Gandhi case, in 1978, Article 21 of the Constitution of India was construed narrowly only as a guarantee against executive action unsupported by law.
  • But this case opened up a new dimension. It imposed a limitation upon law-making as well, that while prescribing a procedure for depriving a person of his life or personal liberty, it must prescribe a procedure which is reasonable, fair, and just.
• Part IV of the Constitution lays down the Directive Principles of State Policy which are fundamental in the governance of the country.
• In Ranjit sing Brahmajeet sing Sharma case, the SC opined that gender injustice, malnutrition, social ostracism of dalits is various forms of violations of human rights.
  • The presumption of innocence is also a human right.
• In the case of National Legal Services Authority v. Union of India, the Supreme Court of India declared transgender people to be a ‘third gender’ and affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people.
  • This judgment is a major step towards gender equality in India.
• The Supreme Court in Navtej Singh Johar v. Union of India gave a historic, and unanimous decision on Section 377 of the Indian Penal Code, decriminalising homosexuality.
  • The Apex Court ruled that sexual orientation is an intrinsic element of liberty, dignity, privacy, individual autonomy and equality, and that intimacy between consenting adults of the same-sex, is beyond the legitimate interests of the state.

It may therefore be seen that safeguarding individual’s rights, so protected and sacrosanct, by judicial activism has been a catalyst in creating a national atmosphere where various aspects of human existence have been given an impetus to enable them to be respected and developed as part of human right of common man

Protection of Human Rights Act:

• The growing concern regarding violation of human rights led to the enactment of Protection of Human Rights Act which provided for constitution of National Human Rights Commission (NHRC), State Human Rights Commission in states and Human Rights Courts for protection of Human Rights and for matters connected therewith of incidental thereto.
• NHRC is in conformity with the Paris Principles.
• It is an embodiment of India’s concern for the promotion and protection of human rights.
• One of the main functions of the NHRC is to inquire into complaints of human rights violations.
• The NHRC has also focused on other human rights issues like rights of the elderly, women, children, transgender, elimination of bonded labour, mental health, and silicosis.
• The Commission has issued guidelines on important issues of custodial deaths, custodial rapes, encounter deaths during the course of police action and has also granted relief in form of monetary compensation as also recommending disciplinary action against the delinquent public servants.
• The NHRC, by way of recent innovations, has tried to enhance its outreach. Some important steps in this regard are:
  • Online complaint registration through HRCNet portal.
  • Provision for the authorities to upload the reports directly on the HRCNet portal
  • Taking on board the SHRCs in the HRCNet portal to avoid duplication of cases
  • Involving around three lakhs common Service Centres for registration of complaints, revamping the website where the status and all the orders of the cases are uploaded and a dedicated MADAD counter which assists the complainants in filing complaints.
  • NHRC has a dedicated focal point for Human Right Defenders who extends assistance to HRDs in case they are in distress due to state action.

It is the cardinal duty of the state and the non-state actors to work in unison to enable the best promotion and protection of human rights of common man in the country and overcome all the challenges.

Challenges in promotion and protection of Human Rights:

India’s socio-economic cultural framework and its colonial past have sprung many challenges in its efforts to promote and protect human rights. The main issues where majority of human rights violations in India take place are as under:

• Failure in taking action by the police, unlawful detention, false implication, custodial violence, illegal arrest, custodial deaths, encounter deaths, harassment of prisoners, jail conditions.
• Atrocities on SCs and STs
• Child marriage, bonded labour, child labour
• Communal violence
• Dowry death or its attempt; dowry demand
• Sexual harassment and indignity to women, exploitation of women
• Discrimination against persons with disabilities, persons with HIV/AIDS, sex workers etc.

Conclusion:

Following the principles laid down in the Constitution, India has performed magnificently when it comes to safeguarding the human rights of the common man. The Executive, Legislature, Judiciary and the autonomous institutions like NHRC etc. have all contributed towards creating a social framework where human rights are ensured to all. There are challenges but they can be met with the concerted efforts of all. It is also very important to understand that rights are best safeguarded when we perform our duties.

The ideals and aspirations of a renascent India and the vision of our founding fathers are contained in the Preamble, the Fundamental Rights (Part III) and the Directive Principles of State Policy (Part IV) of the Constitution. These three may aptly be described as the soul of the Constitution and the testament of the founding fathers to the succeeding generations together with the later part on Fundamental Duties (Part IV-A).

Indian Constitution is built on the foundations of certain fundamental values that have been embedded in it to ensure that there should be fairness and justice for every citizen of India. The inclusion of the Fundamental Rights in the Constitution is in furtherance of the same thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes. However, it has been made very clear that:

• Lot of restraint is required while exercising this freedom.
• Absolute freedom is an illusion and cannot survive alone.
• Fundamental rights need to be paired with fundamental duties.

42^nd Constitutional Amendment:

• The Constitution (Forty-Second) Amendment Act 1976 introduced the concept of fundamental duties by adding Part IV-A, consisting of the sole Article 51A.
• It was inserted after the recommendations of the Swaran Singh Committee.
• This insertion was in line with Article 29(1) of the Universal Declaration of Human Rights which states, “Everyone has duties to the community in which alone the free and full development of the personality is possible”.
• The fundamental duties are the mechanisms that aim at striking a balance between individual freedom and social interests.
• In a judgment, the Supreme Court held that Fundamental Duties are as the important as Fundamental Rights.
• It further said that though Article 51A does not expressly cast any fundamental duty on the State, the duty of every citizen of India is the collective duty of the state- its de facto enforceability in the sense that Article 51A is a yardstick against which the action of the State may be assessed.

Judgements:

• In Union of India (UOI) v Naveen Jindal, the SC observed that fundamental duties are implicit in the concept of fundamental rights, the former providing certain restrictions on the exercise of the latter.
• In Shyam Narayan Chouksey v UOI, the SC stated that Article 51A(a) enjoins a duty on every citizen of India the duty to respect ideals and institutions, including the national flag and national anthem.
  • This was the case in which the Apex Court of India passed a judgment regarding compulsory display of the national anthem prior to screening any movie in the theatres or cinema halls.
  • The SC made it mandatory for all patrons to rise for the duration of this feature presentation.
• In yet another case, the SC relied on Article 51A (d) to state that any citizen may bring it to the notice of the Court if any Act of the legislature provides shelter and protection to the illegal foreign nationals.
• Article 51A(k) was introduced as a fundamental duty in 2002, along with Article 21A as a fundamental right. Through these articles the State (through free education) and the parents (through compulsory education) are made to share obligation with regard to education of the children.
• Right to hoist the national flag has been granted to the citizens subject to the restrictions specified in the Article 51A (c).
• The unenforceable duties have got a booster dose of contents as well as some sort of enforceability through increased references in various judicial pronouncements.
• In certain situations, where the Courts have been called upon to examine the reasonableness of any legislative restriction on the exercise of a freedom, the fundamental duties are of relevant consideration.

Way Forward:

• The constitutional standards of reasonableness of the restrictions on the entrenched rights cannot be compared with the reasonableness as provided under any other branch of law since the court of judicial review acts as arbiter. In such case, the doctrine of proportionality or Wednesbury reasonableness (judicial review of administrative actions) approach, while consisting of several hierarchical standards internally, is followed that requires judicial interference only for the decisions that are seriously unreasonable.
• It is extremely important to create a conducive environment where dissemination of the precepts of duty may be taken care of at a priority level.
• The grassroot approach should be to work earnestly and give practical expression to both the rights and the duties that democracy entails.
• The Universal Declaration of Human Rights also declares: “Everyone has duties to the community in which alone the free and full development of the personality is possible.”
• In 1999, the Justice Verma committee had suggested ways and means to make fundamental duties more effective. It should be followed.

Conclusion:

• Various current crises related to environment, mob-violence and terrorism etc. could have been regulated to a large extent if the human values could be inculcated right from the formative period of life so as to lay a strong foundation for effectuation of Fundamental Duties along with the strong desire to avail the rights.
• Thus, there is a strong necessity to maintain a strong balance between the rights and the duties. One does not have existence as well as the meaning without the other.
• The fine relationship between the Duties and Rights may be summarised in the following words of Lippmann:
• “For every Right that you cherish you have a duty which you must fulfil. For every hope that you entertain, you have a task you must perform. For every good that you wish could happen… you will have to sacrifice your comfort and ease. There is nothing for nothing any longer.”

Every right comes with a corresponding duty. The Constitution of India provides for fundamental rights guaranteed under Part III, and thus the duty lies upon the state to protect those rights. On the other hand, the Constitution categorically provides for certain fundamental duties enshrined under Part IV A, to be performed by its citizens.

Fundamental Duties:

• Inspiration on Fundamental Duties was derived from the Constitutions of USSR, Japan and China.
• Originally, fundamental duties as such were not a part of the Constitution.
• These were introduced for the first time in 1976 by the 42nd Amendment of the Constitution after the recommendations of the Swaran Singh Committee.
• This insertion was in line with Article 29(1) of the Universal Declaration of Human Rights which states, “Everyone has duties to the community in which alone the free and full development of the personality is possible”.
• While ten of the duties were incorporated in the Constitution of India in 1976, 11th was included in the year 2002 by the 86th Amendment.
• The ‘National Commission to Review the Working of the Constitution (NCRWC)’ was set up by Government in the year 2000 under the Chairmanship of Justice M.N Venkatachaliah.
  • The Commission submitted its report in which it emphasised upon the importance and enforcement of the Fundamental Duties.
• The Verma Committee (1999) categorically made certain recommendations for the effectiveness of the Fundamental Duties.

Purpose of Duties:

• Harold Laski has said that, “rights are related to functions and are given only in return for some duties to be performed”. Though it was not felt necessary to include the duties specifically by the framers, the need was indeed felt at a later stage.
• The insertion of fundamental duties is a constant reminder to its citizens to follow the noble ideals and strive for excellence.

Enforcement of the Fundamental Duties of Citizens:

• There is no provision for enforcement of the Fundamental Duties, nor there is any sanction for the violation of the duties under the Constitution.
• The Constitution of India neither intends nor prescribes for sanctions. These duties are obligatory in nature.
• However, provisions under the Indian Penal Code, 1860 which punishes for the act done against the sovereignty and integrity of the State.
• The penal code also punishes for the outrageous acts committed against women, acts damaging the public property etc.
• There are laws for the protection of forests, environment, and wildlife.
• But before these sanctions are used, it should be the duty of the citizens to act in accordance with the laws of this country and strengthen the Constitutional morality.

Conclusion:

• Fundamental duties, as defined in Article 51A, are not made enforceable by a writ of court just as the fundamental rights are, but it cannot be lost sight of that duties in Part IVA – Article 51A are prefixed by the same word fundamental which was prefixed by the founding fathers of the Constitution to rights in Part III.
• Every citizen of India is fundamentally obligated to develop the scientific temper and humanism. He is fundamentally duty-bound to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievements. State is, all the citizens placed together and hence, though Article 51A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State.
• Also, the state is duty bound to educate its citizens about their duties, as a right balance can be maintained between the rights and the duties. And they may not remain merely in the text of the Constitution.

The Constitution of India is one of the most comprehensive and longest enumerated documents of its kind in the world. It is lex loci i.e. the parent of all laws in the country. The three pillars of Indian State (Legislature, Executive & Judiciary) derive their authority from the Constitution.

Framing of the Constitution

• The Constitution of India was drafted by a Constituent Assembly (set up under the Cabinet Mission Plan of 1946) between the years 1946 and 1949.
• Rajendra Prasad served as the President of this body.
• 299 members (including 15 women) of the Assembly took less than three years (1946- 1949) to draft the Constitution.
• The Constituent Assembly members met over 11 sessions between December 1946 and November 1949.
• On 29 August 1947, the Constituent Assembly set up a Drafting Committee under the chairmanship of Dr. B.R. Ambedkar to prepare a draft Constitution.
• The Constitution of India was adopted on 26 November 1949. It came into effect on 26 January 1950. On that day, the assembly ceased to exist transforming itself into the provisional Parliament of India until a new Parliament was constituted in 1952.
• While deliberating upon the draft Constitution, the Assembly moved, discussed and disposed off 2473 amendments out of a total of 7635 amendments tabled. Out of the 299 members, 284 members actually signed the Constitution.
• The Constituent Assembly appointed a total of 13 committees to deal with different tasks of constitution-making. Out of these, eight were major committees and the others were minor committees.
• The 8 major committees were: the Drafting Committee, Union Power Committee, Union Constitution Committee, Provincial Constitution Committee, Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas, Rules of Procedure Committee, States Committee and Steering Committee.

Constituent Assembly:

• The Constituent Assembly of India came into existence as per the provisions of Cabinet Mission Plan of May 1946. Its major task was to facilitate transfer of sovereign power from British authorities to Indian hands.
• Members of the Constituent Assembly were chosen through indirect elections by the Provincial Legislative Assemblies, as per recommendation of the Cabinet Mission.
• The Assembly had 299 members, with 229 representing the provinces and 70 representing states.
• The Constituent Assembly adopted the National Flag on 22 July 1947 & the National Anthem and National Song on 24 January 1950.

Conclusion:

• The Constitution of India is a unique and most comprehensive document representing the aspirations of our diverse population.
• It has very beautifully laid down various principles and acts on how the authority of the Government of a country should be exercised.
• India is a diverse nation with respect to its culture, citizens and this is why the drafting committee took so long to complete the draft and therefore the historical growth of our Constitution can be traced back to many acts.
• Our Constitution has been inspired by various Constitutions of different nations and its spirit has been duly upheld over the years.

Read about the Borrowed Features of Indian Constitution.

Note:

• Nand Lal Bose, a pioneer of modern Indian Art, designed the borders of every page of the Constitution and adorned it with art pieces.
• Prem Behari Narain Raizada, a master of calligraphic art, singlehandedly handwrote the Constitution. It took him 6 months to complete the task and charged no money for the job.

Article 368 of the Indian Constitution deals with the Power of Parliament to amend the Constitution. Under Article 368(2), Parliament can amend the Constitution by passing a Bill in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.

First Constitutional Amendment:

The constitution of India was amended for the first time in 1951. The first amendment to the Constitution of India was undoubtedly a momentous one.

• The need to amend the Constitution arose on account of some judgments of High Courts and the Supreme Court that interpreted the constitution vastly differently from the manner the ruling class came to interpret it or wanted it to be interpreted.
  • It was felt that through these judgments, the judiciary was making unwarranted intrusions into the power of the executive.
  • It was this collective angst of the parliament against judgments of the High Courts and the Supreme Court that lead to the First amendment to our
• The main objects of this Bill were, to amend article 19 and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular.
• The First Amendment Act therefore went on to amend articles 15, 19, 85, 87, 174, 176, 341, 342, 372 and 376. It inserted articles 31A and 31B.
• The Ninth schedule to the constitution was also added in this amendment vide Article 31B.
• It is relevant to note that at this point of time there were 7 groups of rights guaranteed which included Right to Property.
• However, vide the 44th Constitutional Amendment (1978) Right to Property was taken away from the list of Fundamental rights and placed in a new Article 300A as an ordinary legal right. Thus, currently there only 6 groups of rights exist.
• Any law included in the Ninth Schedule was protected from judicial review, even if it was unconstitutional and violating Fundamental Rights.
• What started as a list of 13 laws enabling land reforms has since expanded to protect 282 laws enabling nationalization, currency controls, price and quantity controls, and even the excesses of the Emergency.

Very few amendments to our constitution have had such wide ranging effect on the common man as the First Amendment. For this reason, it shall always be much discussed, deliberated and continue to be applied or adapted according to the felt necessities of the time.

The Parliament plays a central role in the Indian system of representative governance, affecting all aspects of lives of citizens. Many social reforms and economic progress have been led by Parliament. As the central legislative body in India, the Parliament has four main roles—it makes laws, it holds the executive to account for its actions, it allocates government finances, and represents the interests and aspirations of citizens.

Functioning of Parliament:

• Over the years, the Parliament has been meeting for a fewer days.
• The number of sitting days has declined from 125-140 in the 1950s to about 70 days in the last twenty years.
• Also, disruptions have further reduced the amount of time available for discussion in Parliament. During the period of the 15th Lok Sabha, one third of the scheduled time was lost to disruptions.
• The time lost in Question Hour is never made up. As a result, only a few questions listed for oral answers are actually answered on the floor, and the rest get a written reply.
• The shortage of time has also affected discussion on bills.

Areas of Reform:

• There are some structural issues that need to be addressed to improve the effectiveness of Parliament. These include the repeal of the anti-defection law, recording all votes on bills and major debates, referring all bills to committees and strengthening the support system for committees.

The Anti-Defection Law:

• The Tenth Schedule of the Constitution was added in 1985 through the fifty second amendment.
• It provides for the disqualification of an MP if he defects from his party or if he does not vote in accordance with the whip issued by his party.
• Effectively, this gives control to the party leadership over the votes of all its members.
• There have been contentions that the anti-defection law goes against the very concept of representative democracy and that it has weakened the role of Parliament as a body that scrutinizes legislative proposals and that oversees the functioning of the executive.
• In the parliamentary form of government accountability is necessary through questions, resolutions, no-confidence motions, adjournment motions and debates on addresses.
• The anti-defection law negates this principle. It reduces the role of the member to follow the instructions given by the party leader.
• If a party has a majority in Parliament, this implies that there is no effective discussion on or challenge to a Government bill or motion.
• In our representative system, the member has to justify his votes in the legislature to the citizens, who may express their displeasure by voting against him. This system of accountability breaks down with the anti-defection law as the representative can justify his actions— which may go against the interests of his constituency.
• Interestingly, the anti-defection law has had limited effect during no confidence motions. Several instances have occurred in the recent past in states such as Karnataka, Uttarakhand and Arunachal Pradesh, where this provision has failed to maintain party discipline.
• It therefore anti-defection appears that the law has weakened the power of Parliament to oversee the work of the executive. It has also reduced the accountability of the representative to citizens.

Recorded Voting:

• This pertains to the issue of accountability of MPs to their constituents.
• In democracies such as USA and UK, the voting records of legislators are easily available to citizens. Voters as well as the media question representatives on the position taken by them on various issues and require them to justify their choices.
• In our Parliament, most Bills and motions are passed by voice votes. The votes of individual members are recorded (called a division) only if any MP demands so.
• The exception is for bills that amend the Constitution. As a result, only a few bills or motions go through a division.
• This implies that voters cannot question their MPs on their voting behaviour.
• There was a division when the Criminal Laws Amendment Bill was discussed in the aftermath of the Delhi gang rape incident of 2012.

Committee System:

• Parliament has constituted several committees typically having 20-35 members, to scrutinize various issues and make recommendations to the full House.
• These include financial committees, departmentally related standing committees (DRSCs), and various other committees such as those looking at privileges and ethics, setting the daily agenda for the two Houses, and looking at subordinate legislation.
• During the process of examination of any issue, committees often engage with experts. This enables Parliament to access external expertise and also to understand the concerns of people who may be impacted by an issue or a bill.
• The committee system also enables MPs to negotiate across conflicting priorities and positions.

1) Financial Committees:

• There are three Financial committees.
  • The Public Accounts Committee (PAC) examines the reports of the Comptroller and Auditor General (CAG) on the working of various Ministries, considers the responses of the officials, and makes its recommendations.
  • The Committee on Public Undertakings (CoPU) performs a similar role with respect to public sector enterprises.
  • The Estimates Committee looks at whether funds were allocated efficiently for various priorities.

2) Departmentally Related Standing Committees

• The Parliament has constituted 24 such committees, each of which examines the functioning of a set of Ministries and departments.
• They examine bills that are referred to them, demand for grants of the departments, and various subjects that fall within the jurisdiction of the respective ministry.
• It is worth noting that the percentage of bills referred to committees has declined in recent years.

3) Committee on Subordinate Legislation

• While Parliament passes a bill into an Act, it often delegates details to be laid out by the Government through rules or statutory bodies through regulation.
• The committee on subordinate legislation examines rules and regulations to ensure that they follow the legislative intent in letter and spirit.

Way Forward:

• There is a need to strengthen the working of parliamentary committees. They do not have expert research staff to assist the members.
• Often important bills are not referred to these committees; it may be time to revisit parliamentary processes to make this a mandatory step.
• The attendance of members is close to 50%, much thinner than the 80% plus in the House.
• There are many ways in which the effectiveness of the Parliament can be improved. These include revocation of the anti-defection law, making recorded voting mandatory and strengthening system.

Gandhiji by virtue of his long and varied experience in the working of the State system in Europe, Africa and Asia, always argued for four-tier system of governance i.e., Center, State, District and Village level administration. His idea of Panchayat Raj was to raise village as an important unit of democracy. He wanted a bottom-up approach of governance, i.e., village to central level governance.

Constituent Assembly and Panchayati Raj

• The Constituent Assembly preferred two-tier system of governance.
• B. R. Ambedkar, had favoured the provincialism.
  • According to him, village republics in India are dominant by casteism and localism.
  • Reforming Indian villages and bringing social development at the grassroots level requires a lot of time and effort.
  • India’s resources at the time of independence to be spent on developing global status of India and to solve the national problems such as providing food, shelter and clothing, health etc., of the public, rather than strengthening and reengineering the villages.

Pre-Constitution (73rd Amendment) Act, 1993

• In 1957, Balwant Rai Mehta Committee was constituted, which submitted the report stating that, ‘Public participation in community works should be organised through statutory representative bodies.
• National Development Council was established on the basis of the principle of democratic decentralisation, which spread the word ‘Panchayati Raj’ into the main frame of discussion about the rural development.
• First three-tier Panchayati Raj system was inaugurated on 2 October 1959 in Nagaur, Rajasthan.
• The Jayaprakash Narayan Committee further strengthened the idea of Panchayati Raj and the Ministry of Community Development was brought under the Ministry of Food and Agriculture in 1971 and the word ‘Community Development’ was replaced with the ‘Rural Development’.
• The Ashok Mehta Committee, 1978 is the one which recommended for introducing the Panchayati Raj as a Constitutional institution through an amendment.
  • In spirit of Mehta Committee, the States including West Bengal, Karnataka and Andhra Pradesh brought in new initiatives by reviewing their local bodies by entrusting more powers and finances.

64th Amendment Bill

• The 64th Amendment Bill was introduced, stating that Panchayat Raj as an important facet of democracy.
• Later, the 64th Amendment Bill was followed by 65th Amendment Bill that sought to endow urban local bodies in similar lines of Panchayat Raj.
• Though both the bills received the required constitutional majority, the bills failed to take the shape of amendment legislation.

Constitution (73rd Amendment) Act, 1993

• In the year 1992-93, 73rd and the 74th amendments were brought into the Indian Constitution which recognised local self-governance as the third stratum of government.
• Article 40 of the Constitution which is part of Directive Principles of State Policy states that, ‘State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.’
• Recognising that Panchayat Raj Institution in India should be granted certainty, continuity and strength for acquiring the national development, Part IX was introduced which consists of the provisions relating to Panchayats.

Objectives of 73rd Amendment Act, 1993

The 73rd Amendment Act introduced:

• Direct elections for Panchayats.
• Reservation of seats for the SCs and STs in proportion to their population for membership of Panchayats and office of Chairpersons.
• Reservation of not less than one-third of the seats for women.
• Fixed tenure of five years for Panchayats and holding of elections within a period of six months on the eve of suppression of any Panchayats, disqualification of membership of Panchayat.
• Devolution of the State Legislature’s powers over Panchayats with respect of economic development and social justice.
• Created financial powers for the Panchayats through grants-in-aid from the consolidated fund of State.
• Assignment to Panchayats by State or appropriation of revenues by Panchayats of designated taxes, duties, tolls and fee, setting of finance commission etc.

Post 73rd Amendment:

• After 73rd Amendment, Nagaur district of Rajasthan followed by Andhra Pradesh conducted the first elections for Panchayat Raj.
• The incorporation of Panchayat Raj system into the constitutional framework brought the disadvantaged section of population into the mainstream social and political empowerment through 2.4 lakh Panchayats and 2.8 million elected representatives.
• The digitalisation process of Gram Panchayats brought in transparency and good governance.
• Ombudsman, Social Audit, Model Accounting System, Panchayat Performance Assessment initiatives were introduced to develop discipline and progress within the institution.
• Policies such as MGNREGA were introduced which mandates Panchayats as the planning and implementing agency.
• Backward Region Grant Fund (BRGF) has been introduced as a financial backup for the Panchayats for promoting decentralisation, bridging critical gaps in the development and implementation of schemes and to build capacity of the Panchayats.
• The 13th Central Finance Commission award has brought radical changes in the Panchayat Raj System by devolving a share of the divisible tax pool for panchayats, by granting them defacto recognition as third tier of governance.

Way forward:

Despite the progress the Panchayati Raj system, there are many agendas, which are yet to be implemented for achieving full Swaraj as desired by Mahatma Gandhi:

• Providing sufficient staff, office space and infrastructure.
• Allocating funds sufficient for carrying out the objectives of the Panchayati Raj Institutions.
• Removing the word ‘Discretion’ [Article 243G] and ‘creating mandatory obligation upon the States for devolution of 3Fs.
• Implementing the Provisions of the Panchayats (Extension to Scheduled Areas) Act (PESA) to address the demands of the tribal population living in rural areas.
• Urgent need of the effective functioning of the State Finance Commission with a priority of sustenance of PRIs.
• Special focus to be laid down on North Eastern States, 6th Schedule Areas.
• Focusing more on the effective functioning of Gram Sabhas.

The Constitution’s main purpose is not merely to confer powers on the various organs of the government, but also to restrain those powers. Constitutionalism envisages checks and balances and puts the powers of the legislature, executive and judiciary under restraint. The very essence of constitutionalism is that no organ of the state may arrogate powers to itself, beyond what is specified in the Constitution.

Doctrine of Separation of Powers:

The doctrine of separation of powers propounded by the French thinker, Montesquieu, to maintain checks and balances, became the guiding principle of the constitutions of modern democratic states. The separation of powers may not mean equal balance of powers, but it definitely acts as a check on one another.

The Spirit of Constitutionalism:

• The areas of governance generally have been classified into the legislative (enactment of laws), the executive (enforcement of laws); and the judicial or the resolution of disputes relating to the enactment, enforcement, and application of laws.
• Constitutionalism envisages checks and balances and puts the powers of the legislature, executive and judiciary under restraint.
• The very essence of constitutionalism is that no organ of the state may arrogate powers to itself, beyond what is specified in the Constitution.
• The Indian Constitution provides a third and distinct model of separation of powers.
• The other two commonly followed models include – the American Constitution with a rigid separation of powers among the three organs, giving judiciary a unique position and the Constitution of UK (Westminster model) with a loose separation based on the principle of supremacy of the Parliament.
• In India, the Constitution is the ultimate sovereign and if anything goes beyond the provisions of the Constitution, it will automatically be considered as null, void and unconstitutional.
• The Supreme Court in Kesavananda Bharati v. The State of Kerala (1973) held that any amendment tampering with the basic features of the Constitution will be struck down as unconstitutional.
• In India, Parliament derives its mandate from the Constitution and has no unfettered or arbitrary jurisdiction to override the Constitution.

Functional Overlap: Legislature and Executive

• The Indian Constitution does not strictly follow the principle of separation of powers. The executive is part of the legislature and is responsible to it.
• Functionally, the President’s or the Governor’s assent is required at the centre and states respectively for all legislations. The President (Article 123) or the Governor (Article 213) has the power of making ordinances when both houses of the legislature are not in session, which has the same status as that of a law of the legislature.
• Article 311 allows the executive to hold an enquiry into charges against any person holding a civil post under the Union or the State and to award punishment.
• The President or the Governor has the power to grant pardon or modify the punishment of a convicted person.
• The legislature performs judicial function as Parliament can punish members as well as outsiders for breach of its privileges or its contempt by reprimand, admonition or imprisonment.
• Executive is dependent on the legislature while it performs some form legislative of functions subordinate in the legislation.
  • The legislature which controls the executive and can even remove it, also performs some executive functions such as those required for maintaining order in the House.
• The 42nd Amendment (1976) introduced Articles 323A and 323B which authorise Parliament and the state legislatures, respectively, to create tribunals.
• The jurisdiction of the courts is excluded in respect of those subjects. The Articles also made it possible to totally exclude the powers of judicial review under Articles 32 and 226 and vest such powers in tribunals legislatively.
• The Parliament has the right to legislate on the constitution, organisation, jurisdiction and powers of the Supreme Court and High Courts. The power of impeachment of judges is reserved to Parliament.
• The functional overlap allows the executive to perform key legislative and judicial functions.
• Under the Constitution, it is left to the President to decide the number of judges to be appointed to High Courts as well as to decide finally who is to be appointed as a judge, whether of the Supreme Court or the High Court.
• Perhaps, the most unusual form of legislative powers granted under the Constitution to the executive are listed under emergency provisions (Articles 352, 356 and 360).

The Role of Judiciary:

• Sometimes, there is a conflict among the three pillars of democracy due to the application of judicial review to determine constitutionality of the legislation and to review the executive decision.
• Article 32 of the Constitution makes it the guardian of the inviolable fundamental rights guaranteed to citizens for the protection of which it can issue writs.
• Even High Courts enjoy this power under Article 226 for the protection of not only fundamental rights but also other legal rights.
• Article 141 provides that the law declared by Supreme Court shall be binding on all courts of India.
• Under Article 142, it may pass such decree or make such order as is necessary for providing complete justice in any cause or matter pending before it.
• Article 144 mandates that all authorities, civil and judicial, shall work in the aid of the Supreme Court.
• This imposes restrictions on the constituent power of Parliament that the basic structure of the Constitution is not amendable.

Judicial Review:

• Judicial review is a process under which executive or legislative actions are subject to review by the judiciary.
• A nine-judge Constitution bench of the Apex Court ruled that presidential satisfaction for dismissing state governments is judicially reviewable.
  • In 2006, the dissolution of the Bihar Assembly was declared as unconstitutional.
• The President’s or the Governor’s decision in cases of pardon of convicts sentenced to death would be subject to the judicial review.
• The verdict of the Supreme Court Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution is another glaring example when any parliamentary Act is overturned as unconstitutional on the principle of judicial review.

Judicial Activism V/s Overreach

• Judicial activism is a judicial response to a situation warranting immediate remedial measures.
• In recent decades, the judiciary has been frequently charged with overstepping (judicial overreach) into the arenas of other wings by interpreting laws in a particular way.
• The courts often try to frame laws not by interpreting the existing laws but by directing the State to formulate and implement policies which are required to be in conformity and in consonance with the views of the particular court or courts. Contrary to this, the judiciary also feels that the government tries to control it.
• In the name of upholding the rule of law and the independence of the judiciary, some judgments of the Apex Court clearly breach the boundary line usurping the role assigned to others.
  • It laid down principles and norms to be followed in adoption of Indian children by foreigners and procedure to be followed for allowing passive euthanasia.
  • The Supreme Court acknowledging legislative vacuum in Vishakha vs State of Rajasthan showed its concern for women safety and laid down guidelines for protection of women from sexual harassment at workplace.
  • Similarly, in D. K. Basu V. State of West Bengal the SC gave detailed guidelines to be observed while making arrests, defined the arrestee’s rights including the right against torture.
  • The Court directed the Union government to create an All-India Judicial Service so as to bring about uniformity in the services of the subordinate judiciary throughout the country. The court is not competent to do this as it is in contravention of Article 312 under which Parliament alone has the power to create All-India Services by law.

Special Powers of the Supreme Court:

• The Constitution confers on Supreme Court, through Article 142, a special power to do complete justice.
• The Apex Court armoured with the weapon of Article 142 has come out proactively to dispense justice to those who are deprived of it due to various social, educational and economic backgrounds.
• It has played a pivotal role in the evolution of judicial system in India by becoming the voice of the poor and
• Examples:
  • The Supreme Court in 2G Spectrum scam passed an order that no court shall impede the investigation being carried out by the Central Bureau of Investigation and Directorate of Enforcement.
  • A similar court monitored investigation was also undertaken in the Coal Blocks Case.
  • The entire environmental jurisprudence in India evolved through the invocation of Article 142 by the Supreme Court.
  • The Apex Court not only saved the marbles of Taj Mahal from yellowing due to sulphur fumes from the surrounding industries but provided relief to the aggrieved and affected people in many cases.
  • The Supreme Court interventions were appreciated when a five bench judge headed by Venkatachaliah, former Chief Justice of India awarded compensation in Bhopal gas leak tragedy, well beyond the limits created by the statutory provisions.

Conclusion:

• The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated.
• Every organ of the government is required to perform all the three types of functions namely, the legislative, executive and judicial.
• Further, each organ in some respects is dependent on the other organs which keep a check and balance it.
• This does not mean that the principle of separation of powers is together discarded.
• The principle that one organ should not perform functions; which essentially belong to the other, is followed except where the Constitution has vested power in a body.
• India maintains the supremacy of the Constitution, where the powers of the Parliament are circumscribed within the limits set by the Constitution.
• The question is not of parliamentary supremacy or judicial supremacy, rather the question is of striking the balance among various pillars without any encroachment on each other’s area and providing effective governance to nurture and strengthen democratic set up, where the public interests are consciously upheld and considered paramount.

Globalisation has resulted in the widening and deepening of systemic interdependencies amongst nations. However, the ideal of just world order will not be realised without adherence to international rule of law. This goal necessitates finding common approaches to counter problems of terrorism, human rights, environmental degradation, international trade and utilisation of natural resources beyond national jurisdiction. Therefore, the sovereign States are actively participating in international negotiations for framing of treaties at international, regional and subregional levels. The Constitution of India lays down clearly the bases on which foreign policy should be framed and respected. The basic thrust of Article 51 is to maintain international peace and security, international relations and international obligations, matters which, under the Indian Constitution, fall exclusively within the domain of the Union.

• Under the Constitution, the constituent units of the Indian Union do not enjoy any international standing.
• Although this Article falls in the Part IV of the Constitution which is non-justiciable, nonetheless, it occupies an important position in the determination policy in India.
• In reality, Article 51(c) does not deal with the enforcement of treaties, it only obligates the State to foster respect for “international law and treaty obligations” in interstate relations.
• The treaties are not self-executing in India and to make a treaty enforceable in the court, the Parliament has to adopt legislation under the Article 253 of the Constitution.

Indian Judiciary and International Law

• Obligations arising from treaties are not judicially enforceable in India unless backed by legislation.
• Nevertheless, a number of judgments have shown that there is no need to incorporate a treaty into law if its implementation is possible at the administrative level and without legislative endorsement.
• The provisions of the international treaties were invoked in Courts for the purpose of interpreting the domestic law.
• The Maneka Gandhi decision gave a new direction to human rights jurisprudence. It laid down that not merely should there be procedure established by law, but the procedure itself must also be reasonable, fair and just, otherwise the law would be violative of Article 21.
• The Supreme Court has time and again made it clear that the rules of international law must be incorporated into the national law, even without legislation, provided they do not conflict with acts of Parliament.
• When they did conflict, the sovereignty and integrity of the Republic and the supremacy of the constituted legislatures in making the laws could not be subjected to external rules.
• Relying upon Articles 14,15,19(1)(g) of the Constitution, the court observed that “any international convention not inconsistent with the fundamental rights and in harmony with this spirit must be read into these provisions to enlarge the meaning and content thereof to promote the object of the constitutional guarantee”.

Conclusion:

Article 51 of the Constitution brought good name and respect for the country by the international community and also helped in strengthening to espouse the causes of developing nations before international organisations.

The principles of the Constitution in the Preamble assure social justice and promote the dignity of the women. India has ratified various international treaties and human rights conventions to secure gender equality.

Concerns:

• The increasing atrocities, discrimination and crime against women are hurdles for women to cross the domestic thresholds.
• The incidences of molestation, rape, sexual assault, sexual harassment at workplace, gender discrimination, domestic violence etc., are the areas of concern, which are impeding the women empowerment.

International treaties and human rights conventions that secure gender equality:

• Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) 1993, The Mexico Plan of Action 1975, the Nairobi Forward Looking Strategies 1985, the Beijing Declaration and Platform for Action 1995 and 2020.
• India also adopted UN Women, Peace and Security (WPS) agenda and committed to adopt WPS National Action Plan (NAP).
• India also committed to the implementation of the WPS resolution (S/RES/1325) of UN Security Council on women, peace and security.

Constitutional Provisions Promoting Gender Equality:

• Preamble: Socialism, equal distribution of opportunities and resources, social justice, assuring the dignity of the individual
• Article 14: Equality before law and equal protection of laws
• Article 15(1): Prohibition of discrimination on the grounds of sex
• Article 15(3): Empowering State to make special provisions for women and children
• Article 16(2): Equality of opportunity in matters of public employment; prohibition of discrimination on the grounds of sex
• Article 38: State to secure a social order for the promotion of welfare of the people with social justice and equal opportunities
• Article 39(a): Secure, men and women equally, the right to an adequate means of livelihood
• Article 39A: Equal justice and free legal aid
• Article 42: Just and humane conditions of work and maternity relief
• Article 51A(e): Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women
• Articles 243D (3) & (4) 243T (3) & (4): Reservation of seats for women candidates in Panchayats and Municipalities

Legislative Provisions Promoting Gender Equality

• Indian Penal Code: Section 376 – Rape; Section 363 to 373 – Kidnapping and abduction for different purposes;
• Section 302/304-B – Homicide for dowry, dowry deaths or their attempts; Section 498-A – Torture, both mental and physical
• Section 354 – Molestation; Section 509 – Sexual harassment
• The Maternity Benefit Act, 1961
• The Prohibition of Child Marriage Act, 2006
• The Protection of Women from Domestic Violence Act, 2005
• The Protection of Children from Sexual (POCSO) Act, 2012
• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
• Criminal Law (Amendment) Act, 2018

Other Initiatives of Government of India:

• Pan India – Emergency Response Support System (ERSS), single internationally recognized number – 112 for all emergencies with artificial intelligence to identify the location of distress.
• National Policy for the Empowerment of Women 2001.
• National Database of Sexual Offenders (launched in September 2018) for facilitating the investigation and tracking the habitual sexual offenders.
• Launched ‘Investigation Tracking System for Sexual Offences (ITSSO)’ in February 2019 to monitor and track time-bound investigation of sexual assault cases according to Criminal law (Amendment) Act, 2018.
• One Stop Centers to provide medical aid, police assistance, legal and psycho-social counselling, court case management etc.
• In January 2015, the Government of India introduced Beti Bachao, Beti Padhao initiative to create awareness about the importance of female in the society.

Commitment

India ratified the following international instruments related to gender equality:

• Universal Declaration of Human Rights, 1948
• International Covenant on Civil and Political Rights, 1966
• International Covenant on Economic, Social and Cultural Rights, 1966
• Beijing Principles of the independence of judiciary
• Convention on the Political Rights of Women, 1954
• The Declaration on Elimination of Violence against Women (DEVW) 1993
• Convention on Elimination of all forms of Discrimination against Women (CEDAW)
• UN Women
• UN Security Council Resolution on Women, Peace and Security
• Beijing Declaration and Platform for Action, 1995 and 2020 etc
• India is committed to achieve the Sustainable Development Goals (SDGs), which offers opportunity for historical transformation of gender equality

Conclusion:

India is committed to achieve the Sustainable Development Goals (SDGs), which offers opportunity for historical transformation of gender equality. The country’s investment in economic empowerment of women and poverty eradication will bring radical change in the scenario of gender equality. The empowering women will bring them into the mainstream decision-making, entrepreneurship, etc., which will contribute in the enhancement of the economy.