Polity and Governance
PAPER-III
General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
• Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
• Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.
• Separation of powers between various organs dispute redressal mechanisms and institutions.
• Comparison of the Indian constitutional scheme with that of other countries.
• Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.
• Structure, organization and functioning of the Executive and the Judiciary—Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.
• Salient features of the Representation of People’s Act.
• Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.
• Statutory, regulatory and various quasi-judicial bodies.
• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
• Development processes and the development industry —the role of NGOs, SHGs, various groups and associations, donors, charities, institutional and other stakeholders.
• Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.
• Issues relating to development and management of Social Sector/Services relating to Health, Education, Human Resources.
• Issues relating to poverty and hunger.
• Important aspects of governance, transparency and accountability, e-governance- applications, models, successes, limitations, and potential; citizens charters, transparency & accountability and institutional and other measures.
• Role of civil services in a democracy.
• India and its neighborhood- relations.
• Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests.
• Effect of policies and politics of developed and developing countries on India’s interests, Indian diaspora.
• Important International institutions, agencies and fora-their structure, mandate.
Preamble
During the national struggle our leaders indicated that in the constitutional set up in free India people would be granted certain rights. In fact, in the various schemes relating to future constitutional set up, there were references of particular rights that the people of India should be granted. The Commonwealth of India Bill (1925), the Nehru Committee Report (1928), the memorandum of the National Trade Union Federation submitted to the Joint Committee on Indian Constitutional Reforms (1932- 33), the Memorandum submitted by M. Venkatarangaiah to the Sapru Committee and the Sapru Committee Proposals provided for various Fundamental Rights that the people of free India should get. The Constitution which lays down the basic structure of a nation's polity is built on the foundations of certain fundamental values. The vision of our founding fathers and the aims and objectives which they wanted to achieve through the Constitution are contained in the Preamble, the Fundamental Rights and the Directive Principles.
Preamble
The framers of the Constitution sought to unite the vast country with its great diversity of languages and creeds within a common bond of constitutional justice based on the great ideals of liberty, equality, fraternity and justice. Framers showed an uncompromising respect for human dignity, an unquestioning commitment to equality and non-discrimination, and an abiding concern for the poor and the weak The Preamble through its noble words promised Justice, social, economic and political; Liberty of thought, expression, belief, freedom of faith and worship; Equality of status and of opportunity and to promote Fraternity, assuring the dignity of the individual and the unity and integrity of the Nation. Speaking of the imperatives of social democracy,
Dr. Ambedkar said:
"it was, indeed, a way of life, which recognizes liberty, equality and fraternity as the principles of life and which cannot be divorced from each other: Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things."
The Socio-economic Agenda
The scheme of the Constitution for the realisation of the socio-economic agenda comprises of both the justiciable Fundamental Rights as well as the non-justiciable Directive Principles. The judicial contribution to the synthesis and the integration of the Fundamental Rights and the Directive Principles in the process of "constitutionalising" social and economic rights has been crucial to the realisation of the Directive Principles not only as a means to effectuate Fundamental Rights but also as a source of laws for a welfare state.
FUNDAMENTAL RIGHTS
Constitutional guarantees for the human rights of our people were one of the persistent demands of our leaders throughout the freedom struggle. By the year 1949, when the Constituent Assembly had completed the drafting of the Fundamental Rights Chapter, it had before it the 'Universal Declaration of Human Rights, 1948.
The International Covenant on Civil and Political Rights,1966 (ICCPR) broadly referred to the inherent right to life and liberty and the right against arbitrary deprivation of those rights and its various aspects (Articles 6 to 14); privacy, family, etc. (Article 17); freedom of conscience and religion (Article 18); freedom of expression and information (Article 19); Right of peaceful assembly (Article 21); freedom of association (Article 22); rights of minorities (Article 27); etc. The International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) broadly referred to the "right to work" and its various aspects (Articles 6 and 7); right to form trade unions for promotion of economic or social interests and the right to strike (Article 8); right to social security and social insurance (Article 9); family, marriage, children and mothers' rights (Article 10); adequate standard of living, right to food, clothing and housing, freedom from hunger (Article 11); physical and mental health (Article 12); education (Article 13); compulsory primary education (Article 14) and culture (Article 15).
The treaty obligations under the covenant enjoined the State Parties to ensure these rights without discrimination and "to take steps" to promote them "to the maximum of its available resources", with a view to achieving "progressively" the full realisation of these rights. The Directive Principles of State Policy in Part IV of the Constitution are indeed the precursor to economic, social and cultural rights specified in the ICESCR.
SUPREME COURT IN 1973 IN KESAVANANDA BHARATI VS. STATE OF KERALA
As to what are these basic features, the debate still continues. The Supreme Court has also held that the scope of certain fundamental rights could be adjudged by reading into them or reading them not only in the light of the Directive Principles of State Policy but also international covenants or conventions which were in harmony with the Fundamental Rights.
The Fundamental Rights — embodied in Part III of the constitution — guarantee civil liberties such that all Indians can lead their lives in peace as citizens of India. The six fundamental rights are right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies. These include individual rights common to most liberal democracies, incorporated in the fundamental law of the land and are enforceable in a court of law. Violations of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. These rights are neither absolute nor immune from constitutional amendments. They have been aimed at overturning the inequalities of pre-independence social practices. Specifically, they resulted in abolishment of untouchability and prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They forbid human trafficking and unfree labour. They protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and administer their own educational institutions.
All people, irrespective of race, religion, caste or sex, have the right to approach the High Courts or the Supreme Court for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. In public interest, anyone can initiate litigation in the court on their behalf. This is known as "Public interest litigation". High Court and Supreme Court judges can also act on their own on the basis of media reports. Fundamental Rights primarily protect individuals from any arbitrary State actions, but some rights are enforceable against private individuals too. For instance, the constitution abolishes untouchability and prohibits begar. These provisions act as a check both on State action and actions of private individuals. Fundamental Rights are not absolute and are subject to reasonable restrictions as necessary for the protection of national interest.
In the Kesavananda Bharati vs. state of Kerala case, the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights can be amended. However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, separation of powers. Often called the "Basic structure doctrine", this decision is widely regarded as an important part of Indian history.
In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the doctrine's importance as superior to any parliamentary legislation. According to the verdict, no act of parliament can be considered a law if it violated the basic structure of the constitution. This landmark guarantee of Fundamental Rights was regarded as a unique example of judicial independence in preserving the sanctity of Fundamental Rights. The Fundamental Rights can only be altered by a constitutional amendment, hence their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures. The imposition of a state of emergency may lead to a temporary suspension of the rights conferred by Article 19 (including freedoms of speech, assembly and movement, etc.) to preserve national security and public order. The President can, by order, suspend the right to constitutional remedies as well.
DIRECTIVE PRINCIPLES OF STATE POLICY IN INDIA
An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be "fundamental in the governance of the country," they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution's preamble.
The Forty-second Amendment, which came into force in January 1977, attempted to raise the status of the Directive Principles by stating that no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting "antinational activities" or the formation of "antinational associations" could not be invalidated because they infringed on any of the Fundamental Rights. It added a new section to the constitution on "Fundamental Duties" that enjoined citizens "to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities." However, the amendment reflected a new emphasis in governing circles on order and discipline to counteract what some leaders had come to perceive as the excessively freewheeling style of Indian democracy. After the March 1977 general election ended the control of the Congress (Congress (R) from 1969) over the executive and legislature for the first time since independence in 1947, the new Janata-dominated Parliament passed the Forty-third Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the Forty-second Amendment's provision that Directive Principles take precedence over Fundamental Rights and also curbed Parliament's power to legislate against "antinational activities."
The Directive Principles of State DPSP are Policy (contained in part IV, articles 36 to 50,) of the Indian Constitution. Many of the provisions correspond to the provisions of the ICESCR. For instance, article 43 provides that the state shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular the state shall endeavor to promote cottage industries on an individual or cooperative basis in rural areas. This corresponds more or less to articles 11 and 15 of the ICESCR. However, some of the ICESCR rights, for instance, the right to health (art. 12), have been interpreted by the Indian Supreme Court to form part of the right to life under article 21 of the Constitution, thus making it directly enforceable and justiciable. As a party to the ICESCR, the Indian legislature has enacted laws giving effect to some of its treaty obligations and these laws are in turn enforceable in and by the courts.
Article 37 of the Constitution declares that the DPSP "shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws." It is not a mere coincidence that the apparent distinction that is drawn by scholars between the ICCPR rights and ESC rights holds good for the distinction that is drawn in the Indian context between fundamental rights and DPSP. Thus the bar to justiciability of the DPSP is spelled out in some sense in the Constitution itself.
It was said by several members in the Constituent Assembly that the directive principles are superfluous or mere guidelines or pious principles or instructions. They have no binding force on the State. In his speech Dr. Ambedkar answered.
" The directive principles are like instruments of instructions which were issued to the Governor in General and Governors of colonies and to those of India by the British Government under the 1935 Act under the Draft Constitution. It is proposed to issue such instructions to the president and governors. The text of these instruments of the instructions shall be found in scheduled IV to the Constitution of India. What are called directive principles is that they are instructions to the Legislature and the Executive. Such a thing is, to my mind, to be welcomed. Wherever there is grant or power in general terms for peace, order and good government that it is necessary that it should be accompanied by the instructions regulating its exercise." It was never intended by Dr. Ambedkar that the Directive Principles had no legal force but had moral effect while educating members of the Government and the legislature, nor can it be said that the answer referred to necessarily implied with the Directive Principles had no legal force.
FUNDAMENTAL DUTIES
Fundamental Duties of citizens serve a useful purpose. In particular, no democratic polity can ever succeed where the citizens are not willing to be active participants in the process of governance by assuming responsibilities and discharging citizenship duties and coming forward to give their best to the country. Some of the fundamental duties enshrined in article 51A have been incorporated in separate laws.
For instance, the first duty includes respect for the National Flag and the National Anthem. Disrespect is punishable by law. To value and preserve the rich heritage of the mosaic that is India should help to weld our people into one nation but much more than article 51A will be needed to treat all human beings equally, to respect each religion and to confine it to the private sphere and not make it a bone of contention between different communities of this land. In sum, the Commission believes that article 51A has travelled a great distance since it was introduced in the Forty-second Amendment and further consideration should be given to ways and means to popularise the knowledge and content of the Fundamental Duties and effectuate them.
The most important task before us is to reconcile the claims of the individual citizen and those of the civic society. To achieve this, it is important to orient the individual citizen to be conscious of his social and citizenship responsibilities and so shape the society that we all become solicitous and considerate of the inalienable rights of our fellow citizens. Therefore, awareness of our citizenship duties is as important as awareness of our rights. Every right implies a corresponding duty but every duty does not imply a corresponding right. Man does not live for himself alone. He lives for the good of others as well as of himself.
It is this knowledge of what is right and wrong that makes a man responsible to himself and to the society and this knowledge is inculcated by imbibing and clearly understanding one's citizenship duties. The fundamental duties are the foundations of human dignity and national character. If every citizen performs his duties irrespective of considerations of caste, creed, colour and language, most of the malaise of the present day polity could be contained, if not eradicated, and the society as a whole uplifted. Rich or poor, in power or out of power, obedience to citizenship duty, at all costs and risks, is the essence of civilized life.
Spirit of Harmony and Dignity of Women Some further thought needs to be given to clauses (e) and (f) of article 51A. Article 51A(e) desires the promotion of harmony and the spirit of common brotherhood among all the people of India transcending religious, linguistic and regional or sectional diversities and renunciation of practices derogatory to the dignity of women. It is couched in broad terms but it should be clear that attacks on minority communities or minority opinions are frowned upon. Respect for both are essential and the wording lends support to a broad humanism to cover such differences as may exist or better still, co-exist.
Two thoughts can be distilled. The first is that the objective will not be reached unless there is a determined effort to restrict religious practices to the home on the justified premise that one's religion is a personal matter and is not conducive to mass assertiveness. The other is the status of women.
Lip service is being paid to the doctrine of gender equality. The fact remains that generally women are still regarded as inferior both home and workplace although the Commission has noticed an improvement, however dissatisfied it may be with the degree of the at improvement. It is necessary to separate religious precepts from civil law. Civil law as the name implies is a matter for society not for religious leaders and it would seem to us to be axiomatic that in matters of civil rights, laws of property and inheritance and marriage and divorce, although practices may differ, legal rights that accrue must be the same. For example, a marriage may be solemnised according to religious or social custom but the rights of a woman in the case of divorce must be the same no matter what her religion is.
Clause (e) of article 51A also seems to cover the need to regard all human beings equally. In this connection, it is necessary to consider the question of the upliftment of the Scheduled Castes and other disadvantaged sections of our society. The scourge must be eradicated. The Constitution gave us ten years to do the job; the provision has been extended to fifty years and we are in our sixth ten-year period but we are no nearer the goal. The discrimination is two-fold. It is economic-condemning whole sections of our society numbering millions to menial jobs as part of the evil of treating them as sub-human. We have provided for reservation of jobs to these people, we have even given them separate constituencies to represent them. It has created a vested interest in backwardness. The other adverse result is that it has had no effect on their status in society, which continues to be determined by birth and not human worth and human personality. It is this social stigma which still plagues our people and the struggle to restore to them basic human dignity has made no significant progress. While the Commission appreciates the context in which affirmative action became necessary, it feels that reservation of jobs and seats in the legislatures will not help this aspect of the matter.
It is quite clear to the Commission that the disease of considering human beings as high or low based on the accident of birth is a disease rooted in the mind and it is in the mind that the defences of a society based on human dignity and equality must be constructed. Logically this leads directly to the conclusion that the key lies in education. The time to begin training our young people to respect the National flag and sing the National anthem, to respect women, to hold all religions equal and deserving of as much respect as one's own, to accept that all human beings are born equal and are entitled to equal treatment are among principles best taught by examples when the child is too young to understand but not too young to obey. The focus must, therefore, shift to education which has suffered from serious neglect. Schools restrict admissions on unacceptable criteria, teachers themselves are untrained and often politicised, as is the curriculum. Despite these hardships, many of our young people have done well.
COMPOSITE CULTURE
Clause (f) of article 51A requires us to value and preserve the rich heritage of our composite culture. It follows that we may not break each other's places of worship, set fire to religious texts, or beat up one another's priests or obstruct those who exercise their Fundamental Right under article 25 to profess, practice and propagate religion. Composite culture means culture drawn from many strands. Here again education in its broadest and best sense can provide the corrective to the aberrations that have occurred.
Education is not confined only to the time spent in schools and colleges. Education begins at birth in the subconscious and continues till death. Anyone who says that he has nothing more to learn is already brain-dead.
It follows that the influences that play on a child at home are of great importance. Parents should understand that education begins at home, the examples they set, the environment of enlightenment and tolerance that is necessary to produce good citizens cannot be sub-contracted to formal schooling important though this is. Schemes should, therefore, be framed that include parents in social activities that have as their objective the country's age-old traditions, its welcome to the persecuted of every faith, its virtues of tolerance of and respect for all religions and a certain pride in belonging to this land and in being considered as Indian. The highest office in our democracy is the office of citizen; this is not only a platitude, it must translate into reality.
The distinction is not illusory. This country has given far too much indulgence to an attitude of mind that acts on the question - what is there in it for me? Education and the process of inculcating unselfishness and a sense of obligation to one's fellowmen should inspire the question – where does my duty lie? The transformation has the potential to make our nation strong, invincible and able to command the respect of the world.
- The Commission recommends that the first and foremost step required by the Union and State Governments is to sensitise the people and to create a general awareness of the provisions of fundamental duties amongst the citizens on the lines recommended by the Justice Verma Committee on the subject. Consideration should be given to the ways and means by which Fundamental Duties could be popularized and made effective;
- right to freedom of religion and other freedoms must be jealously guarded and rights of minorities and fellow citizens respected;
- reform of the whole process of education is an immediate but immense need, as is the need to free it from governmental or political control; it is only through education that will power to adhere to our Fundamental Duties as citizens can be inculcated; and
- duty to vote at elections, actively participate in the democratic process of governance and to pay taxes should be included in article 51A. The Commission fully endorses the other recommendations of the Justice Verma Committee on operationalisation of Fundamental Duties of Citizens and strongly suggests their early implementation.
The Commission also recommends that the following should be incorporated as fundamental duties in article 51A of the Constitution -
.To fosters a spirit of family values and responsible parenthood in the matter of education, physical and moral well-being of children.
. Duty of industrial organizations to provide education to children of their employees.
The Judiciary system of India is law and rules stated for the welfare of citizens. It is responsible to ensure and re-enforce law and order. To know more about Judiciary system of India explore the article further.!!
Judiciary System of India
Judicial System or the court system is also Judiciary System. The court has the power to make decisions and also enforce the law, solve disputes. Judiciary system consists of Judges and other magistrates, they form the bench or the core of the judiciary system.
On 26 January 1950, the Indian Constitution was written and it is worlds largest constitution written. The constitution is the source of law in India and also the supreme law of India. Judicial System of India consists of Supreme Court, High Court, District Court or Subordinate Court.
Supreme Court of India
Under the constitution of India, the supreme court is the final court of appeal. Hence has the chief justice of India, including 30 judges and other judges for advisory jurisdiction. Unsolved or still in dispute cases are levelled up to Supreme court to reattain justice. If the supreme court declares a law it is binding on all other courts of all States and Union territory. Every court building has 15 courtrooms. the Eligibility to become a Chief justice is:
· The judge in one High court or more, for at least 5 years or advocate in high court for at least 10 years.
· A distinguished judge in the opinion of President of India.
High Court of India
Under the constitution of India, every state should regard to one high court. Mumbai high court id the oldest high court in India. Every High court has 94 judges out of which 71 are permanent and 23 are additional judges. High court deals with the economic issues and legal documentation. These courts also have an additional set of legal professionals. Eligibility for a high court judge is
· He should be a citizen of India.
· An advocate should have at least 10 years of practice in any court.
District Court of India
Under the constitution of India, district courts or Subordinate Courts are subordinate to the high court. District courts are established according to the population distribution of the district and state. It looks after the Civil and criminal matters of the district. A law declared by the district court is applicable to all subordinate courts. Since District court is at a higher hierarchical level. Eligibility for judge in district court is
· He should be the citizen of India
· An advocate should have at least practice for 7 years.
Comments
Post a Comment